TREATISE  ON  THE  LAW 


CRIMINAL  EVIDENCE 


INCLUDING 


THE  RULES  REGULATING  THE  PROPER  PRESENTATION  OF 

EVIDENCE  AND  ITS   RELEVANCY  ; 

THE  MODE  OF  PROOF  IN  PARTICULAR  CLASSES  OF  CRIMES, 


AND  'J.  HE 


Competency  and  Examination  of  Witnesses 


WITH  FULL,  REFERENCES  TO  THE 
DECISIONS 


H.  C.  UNDERHILL,  LL.  B. 

OF  THE  NEW  YORK  BAR 
Author  of  a  "  Treatise  on  the  Law  of  Evidence." 


INDIANAPOLIS  AND  KANSAS  CITY 

THE  BOWEN-MERRILL  COMPANY 
1898 


T 

£90 


Copyright  1898 

BY 

THE  BOWEN-MERRILL  CO. 


PRESS  OF  C.  E.  HOLLENBECK, 
INDIANAPOLIS. 


PREFACE. 


The  existing  law  of  criminal  evidence  is  almost  wholly  the 
product  of  the  judiciary  of  England  and  America  during  the 
last  hundred  years.  The  disadvantages  by  which  the  accused 
was  oppressed  during  the  earlier  periods  of  English  criminal 
jurisprudence  inaugurated  a  process  of  judicial  legislation 
which  evolved  a  series  of  extremely  technical  rules.  These 
rules  mitigated,  in  a  large  degree,  the  severity  of  the  law,  and 
frequently  enabled  an  accused  person  to  establish  his  inno- 
cence. The  advance  of  education  and  of  humane  ideas 
which  has,  during  the  present  century,  effected  so  radical  a  re- 
form in  our  criminal  law  to  the  advantage  of  the  accused,  has 
obviated  the  necessity  for  these  rules. 

The  rules  of  modern  criminal  procedure  have  been  con- 
ceived in  a  liberal  spirit,  and  such  safeguards  are  still  thrown 
around  the  accused  as  enable  him  to  defend  himself  with 
much  greater  advantage  than  he  could  possess  if  he  were 
defending  a  civil  action.  But  the  state,  as  well  as  the  pris- 
oner, has  rights  in  criminal  proceedings,  and  it  has  been  my 
aim  to  define  these  rights  as  far  as  possible. 

I  have  endeavored  to  present : 

First.  A  concise,  but  comprehensive  and  systematic  treat- 
ment of  those  fundamental  doctrines  of  the  law  of  evidence 
which  are  exclusively  invoked  in  the  trial  of  crimes. 

Second.  Those  rules  and  principles  of  the  law  of  evidence, 
which,  while  not  confined  in  their  application  to  criminal 
trials,  are  very  frequently  under  consideration  during  such  pro- 
ceedings. 

The  relevancy  of  particular  classes  of  facts  and  the  mode 
of  proving  them  are  considered. 

(Hi) 


740082 


IV  PREFACE. 

In  the  preparation  of  this  work  I  have  confined  myself  to  a 
presentation  of  the  rules  and  principles  of  the  law  as  I  have 
found  them  stated  in  the  cases  which  have  been  decided  by  the 
courts  of  last  resort. 

The  general  rules  of  proof  constituting  the  body  of  the  law 
of  evidence  are  so  well  settled  as  to  obviate  their  discussion 
in  detail  in  this  work.  The  main  difficulty  in  judicial  pro- 
ceedings is  to  determine  when  and  to  what  extent  general 
principles  are  applicable  to  the  facts  and  circumstances  of  par- 
ticular cases.  The  solution  of  this  difficulty  is  to  be  found, 
first  in  ascertaining  what  the  facts  and  circumstances  are,  and 
next  in  determining  how  the  general  principle  claimed  to  be 
applicable  has  been  applied  in  analogous  cases.  To  render 
this  text-book  of  value  in  the  latter  branch  of  this  inquiry  I 
have  endeavored  to  make  its  citation  of  precedents  exhaustive 
and  recent.  Nearly  nine  thousand  cases  have  been  a-nalyzed, 
examined  and  cited.  In  the  majority  of  these  cases  I  have 
not  only  cited  the  page  in  the  report  on  which  the  case  be- 
gins, but  have  given  the  page  which  contains  or  affirms  the 
rule  of  law  stated  in  the  text  which  the  case  is  cited  to  sup- 
port. 

I  have  given  the  citation  from  the  official  reports  in  every 

instance  where  the  case  cited  had  been  officially  reported  prior 
to  the  date  of  going  to  press  with  this  work. 

H.  C.  UNDERHILL. 

1098  Lafayette  Avenue, 

Borough  of  Brooklyn, 

New  York  City,  N.  Y. 

February  15,  1898. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

CIRCUMSTANTIAL    EVIDENCE    AND    REASONABLE    DOUBT. 
SECTION.  PAGES. 

1.  Necessity  for  rules  of  evidence  in  judicial  proceedings 1 

2.  Elements  of  probability  and  improbability  as  affecting  the  proof 

of  facts  and  circumstances 2-A 

3.  The  character  and  mental  capacity  of  a  witness  as  relating  to  the 

credibility  of  his  testimony 4-5 

4.  The  motive  of  the  witness  to  misrepresent 5-6 

5.  Concurrent  or  corroborative  testimony 6-7 

6.  Circumstantial  evidence — To  sustain  conviction  must  exclude  every 

rational  hypothesis  except  that  of  guilt 8-10 

7.  Circumstantial  evidence  to  prove  corpus  delicti  in  trial  for  homicide.  10-12 

8.  Distinction  between  civil  and  criminal  proceedings  as  regards  rele- 

vancy and  manner  of  proof 12-13 

9.  The  weight  of  evidence — Rules  in  civil  and  criminal  cases  distin- 

guished— Reasonable  doubt 14 

10.  Difficulty  of  defining  reasonable  doubt 14-15 

11.  Demonstration  and  belief  beyond  a  reasonable  doubt  distinguished.  15-lti 

12.  Attempted  definitions  of  reasonable  doubt 16-18 

13.  Precaution  to  be  employed  in  defining  reasonable  doubt 19-20 

14.  Doctrine  of  reasonable  doubt  applicable  to  misdemeanors  as  well 

as  to  felonies 20-21 

15.  Reasonable  doubt  in  the  mind  of  one  juror 21-22 

16.  Statutory  changes  in  rules  of  evidence  and  modes  of  procedure 22-23 


CHAPTER  II. 

PRESUMPTIONS    AND    BURDEN    OF    PROOF. 

17.  The  presumption  of  innocence— General  rule 24-25 

18.  The  presumption  of  innocence  accompanies  the  accused  until  a 

verdict  is  rendered 25-26 

(v) 


yi  TABLE    OF    CONTENTS. 

SECTION.  PAGES. 

19.  Presumption  of  chastity  of  female,  of  continuance  of  life,  etc., 

conflicting  with  the  presumption  of  innocence 26-27 

20.  Presumptions  from  infancy 27-28 

21.  Certain  facts  which  the  courts  are  presumed  to  know 28-29 

22.  Burden  of  proof  and  presumption  of  innocence  distinguished 30-31 

23.  Burden  of  proof— General  rule  casting  it  upon  prosecution 31-32 

24.  Burden  of  proving  a  negative — Facts  peculiarly  within  knowledge 

of  party  alleging  them 32-34 


CHAPTER  III. 

EVIDENCE  BEFORE  THE  GRAND  JURY. 

25.  Ex  parte  character  of  evidence  before  the  grand  jury 35-36 

26.  Legal  and  proper  evidence  only  receivable — Effect  of  basing  in- 

dictment on  incompetent  evidence 36-38 

27.  The  accused  as  a  witness  before  the  grand  jury 38-39 

28.  Sufficiency  of  evidence  before  the  grand  jury 39 

29.  Contempt  of  witnesses  before  the  grand  jury 40 

30.  The  indictment  is  not  evidence 40 


CHAPTER  IV. 

VARIANCE  AND  PROOF  OF  THE  VENUE. 

31.  Proving  the  substance  of  the  offense — What  variances  are  mate- 

rial   41-42 

32.  Proof  of  essential  particulars  of  persons,  time  and  place 42-43 

33.  Variance  in  names— Idem  sonans 43-44 

34.  Variance  in  proving  species  or  genus  of  animals 44 

35.  Proving  the  venue — Judicial  notice  of  general  geographical  facts  ..        45 

36.  The  venue  may  be  proved  by  circumstantial  evidence— Proof  be- 

yond a  reasonable  doubt  not  required 45-46 

37.  Proof  of  venue  in  forgery  and  crimes  committed  in  retirement 47 


CHAPTER  V. 

PRIMARY    EVIDENCE. 

38.  Definition  of  primary  evidence 48-49 

39.  Primariness  of  witnesses— Proof  of  handwriting 49-50 

40.  Evidence  which  is  required  to  be  in  writing 50-51 

41.  Statutory  requirements  as  regards  evidence  of  certain  facts 51-52 

42.  Notice  to  produce 52 


TABLE    OF    CONTENTS.  vii 

SECTION.  PAGES. 

43.  Writings  whose  existence  and  contents  are  in  issue — Impeach- 

ment by  contradictory  writings 52-54 

44.  Primary  evidence  of  collateral  facts 54-56 

45.  Exception  in  the  case  of  proving  general  results 56-57 

46.  Proof  of  records  and  official  appointments 57-58 

47.  Physical  condition  of  personal  property 58-59 

48.  Incriminating  articles— Weapons,  clothing,  etc 59-60 

49.  Inscriptions  on  bulky  articles 60-61 

50.  Photographs  as  primary  evidence — Personal  identity 61-63 

51.  Accuracy  and  relevancy  of  photographs 63-64 

52.  Paintings  and  drawings 64-65 

53.  Real  evidence — Inspection  by  jurors 65-67 

54.  Compelling  accused  to  submit  to  inspection  or  to  stand  for  identi- 

fication   67-68 

55.  Mode  and  effect  of  identifying  evidence 68-70 

56.  Identification  of  the  voice 70 


CHAPTER  VI. 

THE    ACCUSED    AS    A    WITNESS. 

57.  Statutory  competency  of  the  accused 71-72 

58.  The    accused  is  not  compellable  to  testify  against  himself — His 

credibility 72-74 

59.  Mode  of  examining  the  accused 74-76 

60.  Cross-examination — Incriminating  and  disgracing  questions 76 

61.  Examination  as  to  prior  imprisonment,  etc 77 

62.  Statutory  limitation  of  cross-examination  to  relevant  matters 78-79 

63.  Mode  of  cross-examination 79 

64.  Privileged  communications  on  the  cross-examination 79-80 

65.  Conclusiveness  of  answers — Impeachment  by  other  witnesses 80-81 

66.  The  bad  character  of  the  accused — When  admissible  to  impeach 

him 81-82 

67.  Commenting  on  the  failure  of  the  accused  to  testify 82-83 

68.  Exclusion  or  withdrawal  of  comments  on  failure  to  testify — Fail- 

ure to  call  other  witnesses,  or  to  testify  to  incriminating  facts...  83-85 

69.  Accomplices  defined— Province  of  court  and  jury 85-86 

70.  Accomplices  when  jointly  indicted — Witnesses  for  each  other 86-87 

71.  Accomplices  as  witnesses  for  the  state 87-89 

72.  Immunity  of  accomplice  when  testifying  for  the  state 89-90 

73.  Credibility  and  corroboration  of  accomplices 90-01 

74.  Extent  of  corroboration  required — It  must  be  of  material  facts 91-93 

75.  The  nature  of  the  crime  as  a  test  of  corroboration — Sufficiency  of 

corroboration 93-94 


Vlll  TABLE    OF    CONTENTS* 


CHAPTER  VII. 

CHARACTER   OF    THE    ACCUSED. 
SECTION.  PAGES. 

76.  Character  defined — The  accused  may  show  good  character 95-96 

77.  Specific  traits  onty  relevant — Character  of  associates 96-97 

78.  Bad  character — When  admissible 97-99 

79.  Effect  and  operation  of  evidence  of  good  character 99-100 

80.  Good  character,  though  never  conclusive,  may  acquit  if  it  cre- 

ates a  reasonable  doubt 100-101 

81.  Mode  of  proof — Irrelevancy  of  personal  opinions— Derogatory 

rumors  in  rebuttal 101-102 

82.  Specific  evil  acts— Relevancy  of 103-104 

83.  Remoteness — Character  subsequent  to  the  date  of  the  crime 104 

84.  The  grade  and  moral  nature  of  the  crime 104-105 

85.  Disposition  is  irrelevant   105 

86.  Number  of  witnesses  to  character 106 


CHAPTER  VIII. 

PROOF    OF    OTHER    CRIMES. 

87.  General  rule  regarding  evidence  of  crimes    other    than    that 

charged  in  the  indictment 107-108 

88.  Connected  or  intermingled  crimes  forming  parts  of  one  whole....  108-110 

89.  Evidence  of  other  offenses  to  show  specific  intention  or  guilty 

knowledge 110-112 

90.  Relevant  evidence  not  inadmissible  because  indirectly  proving 

or  tending  to  prove  another  crime — Dissimilar  crimes  united 

in  motives 112-114 

91.  Identity  of  means  employed  in  several  crimes — Identity  of  ac- 

.  cused  114-115 

92.  Sexual  crimes 115 


CHAPTER  IX. 

DECLARATIONS    WHICH    ARE    A    PART    OF    THE    RES    GEST.E. 

93.  Scope  and  limit  of  facts  and  declarations  forming  a  part  of  the 

res  gestae 116-117 

94.  Necessity  for  approximation  of  unity  in  time,  place  and  motive 

prompting  the  declarations 118 

95.  Declarations  must  explain  and  illustrate  the  main  transaction...  118-119 

96.  Contemporaneous  character  of  the  declarations 119-120 

97.  Interval  for  consideration  or  taking  advice 121 


TABLE    OF    CONTENTS.  IX 

SECTION.  PAOB8. 

98.  Mental  and  physical  conditions  as  influencing  the  declarations..  122 

99.  Admissibility  for  the  accused — Relevancy 123 

100.  Declarations  uttered  prior  to  the  crime 123-124 

101.  Declarations  by  bystanders  and  third  persons 124-126 


CHAPTER  X. 

DYING    DECLARATIONS. 

102.  Definition— Religious  element 137-129 

103.  Consciousness  of  nearness  of  death  as  shown  by  the  declarant's 

language 129-131 

104.  Sending  for  legal  or  spiritual  advisers,  nature  of  wounds  or  other 

circumstances  showing  a  consciousness  of  approaching  death.  131-132 

105.  Period  intervening  between  the  statement  and  the  death  132-133 

106.  Dying  declarations  not  admissible  to  prove  all  crimes 133-134 

107.  Dying  declarations  distinguished  from  those  which  are  a  part  of 

the  res  gestae 135-136 

108.  Opinions  contained  in  dying  declarations  are  not  admissible 136-137 

109.  Must  refer  to  the  res  gestae  of  the  homicide 137-138 

110.  Mode  of  proof,  credibility,  relevancy  and  weight 138-139 

111.  Declaration  is  admissible  in  its  entirety — Contradictory  or  un- 

truthful character 139-140 

112.  The  form  of  the  declaration 140-142 

113.  Declarations  by  signs — Mental  condition  of  the  declarant 142-143 

114.  Dying  declarations  made  by  children 143 


CHAPTER  XI. 

CONSCIOUSNESS    OF    GUILT. 

115.  Facts  showing  a  consciousness  of  guilt 144-145 

116.  Falsehoods  by  accused  or  suspected  persons 145-146 

117.  Demeanor  subsequent  to  crime 146-147 

118.  The  flight  or  attempted  escape  of  the  accused 147-149 

119.  Explanation  by  accused  of  his  flight  or  attempted  escape 149-151 

120.  Resistance  to  arrest 151-152 

121.  Fabricating  or  suppressing  evidence 152-153 

122.  Silence  under  accusations  of  guilt 153-154 

123.  Attendant  circumstances  explaining  motives  and  reasons  of  si- 

lence   154-156 

124.  The  accusatory  assertion  or  question 156-158 


TABLE    OF    CONTENTS. 


CHAPTER   XII. 

CONFESSIONS. 
SECTION.  PAGES. 

125.  Definition  and  classification 159-160 

126.  Voluntary  character  of  confessions 160-161 

127.  Burden  of  proof  to  show  voluntary  character 161-162 

128.  Circumstances  under  which  confession  becomes  involuntary 162-163 

129.  Confessions  made  while  under  arrest 163-164 

130.  Effect  of  cautioning  the  accused 164-165 

131.  Confessions  under  oath 165-166 

132.  Confessions  taken  at  the  preliminary  examination 166-167 

133.  Mode  of  proving  confessions  made  at  the  preliminary  examina- 

tion   167-168 

134.  Confessions  of  persons  associated  in  a  conspiracy 169 

135.  Artifice  or  deception  used 169-170 

136.  Confessions  by  intoxicated  persons 171 

137.  Admissions  receivable  though  involuntary 171-172 

138.  When  facts  discovered  admit  parts  of  an  involuntary  confes- 

sion   172 

139.  Confessions  procured  by  persons  in  authority 173-174 

140.  Confession  need  not  be  spontaneous 174-175 

141.  Confessions  made  by  signs  or  gestures 175-176 

142.  Confessions  of  treason 176 

143.  Confessions  made  by  young  children 176 

144.  Judicial  confessions — Plea  of  guilty 177-178 

145.  Confessions  of  persons  not  indicted  178-179 

146.  The  value  of  confessions  as  evidence 179-181 

147.  Mode  of  proof — When  corroboration  is  required 181-182 


CHAPTER  XIII. 

ALIBI. 

148.  Definition  and  character  of  alibi — Burden  of  proof 183-184 

149.  Distance  and  period  of  absence 185-186 

150.  Relevancy  of  evidence 186-187 

151.  Impeaching  the  alibi — Defendant's  declarations 187 

152.  Reasonable  doubt 187-188 

153.  Cautioning  the  jury 189-191 


CHAPTER  XIV. 

EVIDENCE    OF    INSANITY    AND    INTOXICATION. 

154.  Mental  capacity  to  know  right  and  wrong  as  a  test  of  insanity...  192-193 

155.  Uncontrollable  impulse  and  insane  delusions 194-195 


TABLE    OF    CONTENTS.  xi 

SECTION.  PAGES. 

156.  Presumption  of  continuance  of  insanity 195 

157.  Burden  of  proof  to  show  sanity  and  insanity 195-197 

158.  Proof  of  insanity  beyond  a  reasonable  doubt  not  required 198-199 

159.  The  character  and  range  of  evidence  to  show  insanity 199-200 

160.  Evidence  showing  the  appearance,  conduct  and  language  of  the 

accused  after  the  crime — Evidence  of  insanity  in  family  of  ac- 
cused    200  201 

161.  Non-expert  evidence 201-202 

162.  Non-expert  must  relate  in  evidence  facts  on  which  his  impres- 

sion is  based  -Degree  of  knowledge  required 202-203 

163.  Expert  evidence — What  constitutes  an  expert — Physical  exam- 

ination of  accused  to  ascertain  sanity 204-205 

164.  Evidence  of  voluntary  intoxication— "When  irrelevant 205-206 

165     Insensibility  or  insanity  from  indulgence  in  intoxicants  may  be 

shown 206-207 

166.  Evidence  of  intoxication  as  bearing  on  a  specific  intent,  or  on 

premeditation 207-209 

167.  Mode  of  proving  or  disproving  intoxication 209-210 

168.  Morphine  habit 210 


CHAPTER  XV. 

PRIVILEGED     COMMUNICATIONS. 

169.  Foundation  of  the  doctrine  and  classification  of  communications.  211-213 

170.  Executive  communications  and  transactions 213-214 

171.  Communications  to  police  officials 214 

172.  Communications  to  attorneys  at  law 215 

173.  Communications  made  by  or  to  the  agent  of  the  attorney 216-217 

174.  Character  and  date  of  the  communications 217-219 

175.  Communications  made  in  contemplation  of  crime 219-220 

176.  Permanency  of  the  privilege — Waiver 220-222 

177.  Writings,  when  privileged 222-223 

178.  Communications  to  spiritual  adviser 223-224 

179.  Communications  passing  between  medical  practitioners  and  their 

patients 224-227 

180.  Death  of  the  patient — Purpose  of  the  communication — Contem- 

plated crime 227-228 

181.  Communications  made  during  an  examination  to  detect  or  ascer- 

tain sanity : 22.S 

182    Secrecy  of  telegrams 228-22!) 

183.  Indecency  of  the  facts  to  be  proved 229-230 

184.  Privileged  communications  between  husband  and  wife 230-231 

185.  Husband  and  wife  as  witnesses  in  criminal  proceedings 231-232 

186.  Statutory  competency  of  husband  and  wife 233 

187    Confidential  communications  between  husband  and  wife 233-234 


Xll  TABLE    OF    CONTENTS. 

SECTION.  PAGES. 

188.  Husband  or  wife  of  co-defendant  as  a  witness  for  or  against 

his  associate  in  crime — Testimony  of  husband  or  wife  on  trial 

of  a  third  person  tending  to  criminate 234-236 

189.  Valid  marriage  is  necessary 236-237 

190.  Privilege  as  relating  to  the  evidence  of  judicial  officers 237-238 

191.  Privilege  as  relating  to  grand  jurors 238-239 

192.  Statutory  regulations  of  the  competency  of  grand  jurors 240-241 

193.  Evidence  of  traverse  jurors 241-242 


CHAPTER  XVI. 

EVIDENCE  OF  FORMER  JEOPARDY. 

194.  Plea  of  former  conviction  or  acquittal 243 

195.  Record  of  former  trial  in  evidence 243-244 

196.  Essential  facts  to  be  shown 244-245 

197.  Identity  of  crime  and  person 245 

198.  Criminal  judgments  as  admissions 246 

CHAPTER  XVII. 

THE    COMPETENCY    OF    WITNESSES. 

199.  Definition  and  formal  requirements  of  the  oath 247-248 

200.  When  witness  may  affirm 248-249 

201.  Religious  belief  of  the  witness 249-251 

202.  Insanity — When  disqualifying  a  witness 251-252 

203.  Mode  of  proving  insanity  of  witness 252-253 

204.  Deaf  mutes  as  witnesses 253 

205.  Children  on  the  witness  stand 253-255 

206.  Incompetency  of  witnesses  caused  by  conviction  of  infamous   - 

crime 255-256 

207.  The  pardon  of  the  convict — When  restoring  competency 256-257 

208.  Mode  of  proving  pardon — Parol  evidence 257 

209.  Statutory  regulations  removing  the   incompetency  of  persons 

convicted  of  crime 258-259 

210.  Statutes  construed 259 


CHAPTER   XVIII. 

THE    EXAMINATION    OF    WITNESSES. 

211.  Direct  examination — Leading  questions 260-261 

212.  When  leading  questions  may  be  asked  on  the  direct  examina- 

tion   261-262 


TABLE    OF    CONTENTS.  xiii 

SECTION.  PAGES. 

213.  Forgetful  witness  may  be  asked  leading  questions 262  263 

214.  Questions  put  to  the  witness  by  the  court 264-265 

215.  Judicial  remarks  upon  the  demeanor  or  credibility  of  a  witness 

during  his  examination 265  266 

216.  Answers  must  be  responsive 266  267 

217.  Refreshing  the  memory  of  a  forgetful  witness  by  memorandum..  2(57-268 

218.  Character  of  the  memorandum  employed  to  refresh  the  memory.  268-269 

219.  Purpose  and  importance  of  cross-examination 269-270 

220.  When  right  to  cross-examine  is  lost — Cross-examination  con- 

fined to  matters  brought  out  on  direct 270-271 

221.  Cross-examination  to  test  credibility 271-273 

222.  When  answers  to  questions  involving  collateral  matters  asked 

in  cross-examination  may  be  contradicted — Hostility  or  friend- 
ship towards  the  accused 273-274 

223.  Re-direct  examination 274-276 

224.  Recalling  witnesses 276-277 

225.  Exclusion  and  separation  of  witnesses 277-278 

226.  Refusal  to  testify 278-278 

227.  Interpreting  the  language  of  the  witness  279-280 

228.  Improper  reception  of  evidence  by  the  jurors 280-281 

229.  View  by  the  jurors — Discretionary  power  of  the  court 282 

230.  Purpose  of  the  view  is  to  afford  evidence 282-283 

231.  The  right  of  the  accused  to  be  present  during  the  taking  of  the 

view 283-284 

232.  Presence  of  the  accused  while  taking  testimony 284-285 

233.  Experiments  in  and  out  of  court 285-286 


CHAPTER  XIX. 
i 

THE    IMPEACHMENT   OF    WITNESSES. 

234.  Impeachment  of  witnesses— General  rule 287-288 

235.  The  impeachment  of  necessary  witnesses  and  those  unexpectedly 

hostile 288-290 

236.  Impeachment  of  adverse  witnesses  by  showing  bad  reputation 

for  veracity — Belief  under  oath 290-292 

237.  Impeachment  by  showing  the  general  bad  character  of  the  wit- 

ness aside  from  truthfulness 292-293 

238.  Impeachment  of  the  adverse  witness  by  showing  contradictory 

statements — Necessity  for  foundation 293-295 

239.  Impeachment  by  contradictory  affidavits,  depositions  and  other 

writings 295-296 

240.  Contradictory  writings  must  be  shown  to  the  witness  who  is  to 

be  impeached 296-297 

241.  Contradiction  of  irrelevant  matters  not  permissible — Proof  of 

confirmatory  statements 297-298 

242.  Previous  silence  as  impeachment 298 


XIV  TABLE    OF    CONTENTS. 

SECTION.  PAGES. 

243.  Relevancy  of  evidence  to  show  the  general  reputation  for  truth- 

fulness of  a  witness  who  has  been  impeached 299 

244.  Limitations  upon  the  right  to  ask  questions  which  disgrace  the 

witness 299-300 

245.  Impeachment  by  showing  social  connections,  occupation  and 

manner  of  living 301-302 

246.  When  and  how  previous  imprisonment  or  conviction  of  crime 

may  be  shown 302 

247.  Incriminating  questions 303-305 

248.  Interest  and  bias  of  the  witness  as  impeachment 305-307 


CHAPTER  XX. 

THE    ATTENDANCE    OF    WITNESSES. 

249.  The  subpoena— Witness  fees 308-309 

250.  Constitutional  right  of  the  accused  to  compulsory  process  to 

procure  the  attendance  of  witnesses 309-310 

251.  Subpoena  duces  tecum 310-311 

252.  Validity  of  reasons  for  not  producing  writings 311-312 

253.  Service  of  the  subpoena  and  time  allowed  to  witnesses 312 

254.  Recognizance  to  secure  the  attendance  of  witnesses  where  the 

hearing  is  postponed 312-313 

255.  Obstructing  the  attendance  of  witnesses 313-314 

256.  Change  of  venue  for  the  convenience  of  witnesses 314-315 

257.  The  intentional  absence  of  witnesses— When  it  constitutes  a 

contempt  of  court 315-316 

258.  Privilege  of  witnesses  from  civil  arrest  and  from  service  of  civil 

process 316-317 

259.  Attendance  of  witnesses  in  custody 318 


CHAPTER  XXI. 

ABSENT    WITNESSES    AND    CONTINUANCES. 

260.  Grounds  for  admitting  the  testimony  of  missing  witnesses 319-320 

261.  Deceased  or  insane  witnesses— How  death  of  witness  may  be 

proved 320 

262.  Witnesses  sick  or  out  of  the  jurisdiction — Distinction  between 

civil  and  criminal  cases 320-321 

263.  Mode  of  proving  absence  of  witness 321-322 

264.  Absence  of  witness  procured  by  connivance — Relevancy  and  use 

of  evidence  of  such  witness 322 

265.  Cross-examining  and  confronting  witnesses 322-323 

266.  Mode  of    proving    the  evidence  of  the  absent  witness  —  Sub- 

stance only  need  be  stated 323-325 


TABLE    OF    CONTENTS.  XV 

SECTION.  PACKS. 

267.  Stenographer's  notes,  judge's  minutes  and  bill  of  exceptions 

when  used  to  prove  the  evidence  of  the  absent  witness 325-326 

268.  Continuance  when  granted  because  of  absence  of  witness — Dis- 

cretionary power  of  the  court 326-327 

269.  Due  diligence  in  summoning  witness  must  be  proved — The  com- 

petency and  materialty  of  his  testimony  must  appear 328-329 

270.  What  facts  the  affidavit  for  the  continuance  must  contain 329-330 

271.  Admissions  to  avoid  continuance — Constitutional  right  of  the 

accused  to  enjoy  the  benefit  of  oral  testimony 330-331 

272.  Admission  of  facts  as  true  to  avoid  continuance 331-332 


CHAPTER  XXII. 

THE  PROVINCE  OF  JUDGE  AND  JURY. 

273.  The  power  and  right  of  the  jury  to  determine  the  law — Criminal 

libel 333-334 

274.  Character  and  analysis  of  a  general  verdict 334-336 

275.  Charging  the  jury  on  the  law — Physical  power  of  the  jury  to 

disregard  the  judge's  charge 336-338 

276.  Charging  on  the  evidence 339-340 

277.  Assumption  of  facts  in  charge 340-341 

278.  Necessity  for  evidence  to  sustain  instructions 341 

279.  Directing  a  verdict 342-343 

280.  Order  and  manner  of  introducing  the  proof 343-344 

CHAPTER  XXIII. 

EMBEZZLEMENT    AND    LARCENY. 

281.  Embezzlement — Essential  facts  constituting  the  crime 345-346 

282.  Embezzlement — The  intention  to  convert 346 

283.  Proving  other  acts  of  embezzlement 347 

284.  Evidence  of  demand  and  refusal 347 

285.  The  existence  of  the  fiduciary  relation 347-348 

286.  The  ownership  of  the  property 348 

287.  Evidence  of  efforts  to  conceal  or  dispose  of  property  or  money...  348-349 

288.  Circumstantial  evidence  to  prove  the  venue 349 

289.  Value  of  the  property 349-350 

290.  Admissions  by  the  defendant 350 

291.  Documentary  evidence 350-351 

292.  Larceny — The  felonious  intention 352 

293.  The  carrying  away 353 

294.  Ownership— Character  and  proof  of 353-354 

295.  Competency  of  owner  of  stolen  goods  as  witness— Proof  of  his 

non-consent , 354-355 


XVI  TABLE    OF    CONTENTS. 

SECTION.  PAGE8. 

296.  Identifying  the  stolen  property 355-357 

297.  Recorded  brands  of  cattle 357-358 

298.  Evidence  of  venue  and  of  the  value  of  money  or  property 358-359 

299.  Inference  from  possession  of  the  property  stolen 359-3(50 

300.  Recent  and  exclusive  character  of  possession 360-361 

301.  Burden  of  explaining  possession — Character  of  explanatory  evi- 

dence   361-363 

302.  Explanatory  declarations 363-364 

303.  Evidence  of  footprints 364 

304.  Financial  standing  and  expenditures  of  the  defendant 364-365 

305.  Evidence  of  other  crimes 365-366 

306.  Stolen  goods  found  through  inadmissible  confession 366-367 

307.  Malicious  mischief 367 

308.  Malicious  intent 367-368 

309.  Ownership  and  value  of  property — Evidence  that  the  accused 

acted  in  good  faith 368 

310.  Maliciously  injuring  animals 369-370 

311.  Injuries  to  grain,  trees,  crops,  etc 370 


CHAPTER  XXIV. 

HOMICIDE. 

312.  Facts  forming  the  corpus  delicti— Evidence  to  prove  the  cause 

and  manner  of  death 371-374 

313.  The  result  of  the  autopsy  as  evidence 374 

314.  Variance  in  proof  of  means  or  weapon  producing  death 375 

315.  Weapons  as  evidence 376 

316.  Identity  of  the  deceased 376-377 

317.  The  identification  of  the  body  of  the  deceased 377 

318.  Expert  testimony  and  the  employment  of  a  chemical  analysis 

in  cases  of  homicide  by  poisoning 377-379 

319.  Relevancy  of  evidence  to  show  poisoning..... 379 

320.  Presumption  and  proof  of  malice 380-381 

321.  Connected  crimes 382 

322.  Conduct  of  the  accused  subsequent  to  the  crime 382-383 

323.  Facts  showing  possible  motive 383-385 

324.  Competency  of  evidence  showing  the  habits,  character  and  dis- 

position of  the  deceased 385-387 

325.  Nature  of  the  proof  required  to  show  the  character  of  the  de- 

ceased   387-388 

326.  Evidence  of  threats  by  the  deceased 388-390 

327.  Evidence  to  prove  the  peaceable  character  of  the  accused 390-391 

328.  Threats  by  the  accused— General  nature  of  these  threats 391-392 

329.  Form,  character  and  mode  of  proving  threats 392-393 

330.  Declarations  forming  a  part  of  the  res  gestce 393-395 


TABLE    OF    CONTENTS.  XV11 

SECTION.  PAGES. 

331.  Declarations  of  third  persons  and  cries    and   exclamations  of 

bystanders :  95 

332.  Threats  against  deceased  by  third  persons 395-396 

333.  Animosity  between  the  deceased  and  the  accused 396-397 

334.  Expert  and  non-expert  evidence  as  regards  blood  stains 397-  399 

335.  Conspiracy  to  commit  homicide 399-401 

336.  Preparations  to  commit  homicide 400 

337.  Footprints 400 

338.  Self-defense— Burden  of  proof 400-401 

338a. The  alibi  of  the  alleged  victim  401-403 


CHAPTER  XXV. 

CRIMES  AGAINST  THE  PERSON. 

339.  Abduction — Proving  the  taking  away  or  enticement — Corrobora- 

tion of  the  prosecutrix 404-406 

340.  Abduction  of  a  minor — Proving  the  non-consent  of  the  mother 

or  other  guardian 406 

341.  Chastity  of  the  female — Presumption  of  chastity 406-407 

342.  Evidence  to  show  the  age  of  prosecutrix — Belief  of  accused  as  to 

the  female's  age 407-408 

343.  Abduction  for  purposes  of  prostitution  or  concubinage 408-409 

344.  Abortion  at  common  law  and  by  statute  distinguished 410 

345.  Intention  to  produce  an  abortion— Evidence  of  other  crimes 410 

346.  Victim  of  abortion  is  not  an  accomplice— Corroboration,  when 

required 410-411 

347.  Necessity  for  the  operation — Burden  of  proof 411 

348.  Declarations  of  present  pain  and  suffering  and  dying  declara- 

tions of  the  victim 411-412 

349.  Evidence  of  the  woman's  physical  condition  and  illness — Direct 

and  circumstantial  evidence 412-413 

350.  Expert  testimony  of  physician — Evidence  afforded  by  the  post- 

mortem    414 

351.  Exception  to  rule  regulating  privileged  communications  to  phy- 

sicians   414^15 

352.  Assault  and  battery — Definition 415-416 

353.  Evidence  to  show  present  ability  of  assailant  to  put  his  attempt 

in  action 416-417 

354.  Intention  to  do  some  corporal  injury — Circumstances  which  are 

relevant 417-418 

355.  Evidence  of  other  assaults 418 

356.  Assault  with  deadly  weapons — Evidence  to  show  character  of 

weapon  used 418-419 

357.  Evidence  of  threats  and  previous  hostility 419 

358.  Robbery — Intention  present  and  force  employed 420-421 

ii — Ck.  Ev. 


Xviii  TABLE    OF    CONTENTS. 

SECTION.  PAGE8. 

359.  The  crime  of  mayhem 421-422 

360.  Sodomy 422-423 

361.  Criminal  libel  denned 423 

362.  The  publication  of  the  libel 423-424 

363.  The  meaning  of  the  language  used 424 

364.  Malicious  intention  in  publishing 424-425 

365.  Evidence  of  the  truth  as  a  defense 426-427 


CHAPTER  XXVI. 

OFFENSES    AGAINST    HUMAN    HABITATIONS. 

366.  Arson — At  common  law  and  by  statute — Evidence  to  show  local- 

ity of  building 428-429 

367.  Proof  of  actual  burning  required — Non-accidental  character  of 

fire — Proof  of  premises  burned 429 

368.  Threats  and  declarations  by  the  accused — Remoteness 429-430 

369.  Relevance  of  evidence  to  show  the  intent — Proof  of  other  crimes.  431-432 

370.  Evidence  of  preparation  to  show  that  the  accused  was  near  the 

burned  premises 432^133 

371.  Burglary  defined — Entrance  at  night-time — Prepai-ations  to  com- 

mit   433-434 

372.  Evidence  to  prove  forcible  breaking  and  entering — The  condi- 

tion of  the  premises 434-435 

373.  Proof  of  constructive  breaking — Non-consent  of  owner — Owner- 

ship and  value  of  property 435-436 

374.  Correspondence  of  foot-prints  with  the  foot-wear  of  the  accused  436-438 

375.  Burglarious  tools  in  the  possession  of  the  accused 438-439 

376.  Other  burglarious  acts 439 

377.  The  felonious  intention  present  in  entering 439-440 

378.  Presumption  from  the  possession  of  stolen  property 440-442 

379.  Articles  stolen  from  the  premises  as  evidence 442 

CHAPTER   XXVII. 

SEXUAL    CRIMES. 

380.  Adultery  and  fornication— Defined  and  distinguished 443-444 

381.  Evidence  to  prove  the  intercourse — Acts  of  adultery  other  than 

that  charged  444 

382.  Competency  of  accomplice 445 

383.  Character  of  evidence  to  prove  the  fact  of  marriage 445-447 

384.  Lascivious  cohabitation  or  living  in  unlawful  cohabitation 447-448 

385.  Seduction  defined 448 

386.  The  sexual  intercourse — Relevancy  of  evidence 448 

387.  Evidence  to  prove  the  promises 448-449 


TABLE    OF    CONTENTS.  XIX 

SECTION.  PAOl  -. 

388.  Relevancy  of  the  previous  conduct  of  the  parties 449-450 

389.  The  examination,  credihility  and  corroboration  of  the  prosecu- 

trix   450-451 

390.  Character  of  corroborative  evidence  required 451-452 

391.  The  marriage  of  the  accused  to  the  seduced  female 452-453 

392.  The  chastity  of  the  female — What  constitutes  chastity  and  how 

it  may  be  proved 453-455 

393.  The  presumption  of  chastity 455 

394.  Defilement  of  female  ward  or  servant 456 

395.  Incest  defined 456-457 

396.  Evidence  to  show  the  sexual  intercourse 457-458 

397.  The  kinship  existing  between  the  parties — Evidence  of  accom- 

plices    458 

398.  Bigamy — The  intent — Invalidity  or  annulment  of  first  marriage.  458-459 

399.  Presumption  and  proof  of  death  of  spouse 459 

400    Competency  of  wife  of  accused 459-460 

401.  Absence  of  lawful  spouse 460-461 

402.  Proof  of  marriage  by  eye-witness  or  certificate 461 

403.  Proof  of  marriage  by  reputation,  cohabitation  and  conduct 461-462 

404.  The  admissions  of  the  accused  as  evidence  to  prove  the  mar- 

riage— Primary  evidence  of  the  ceremony — When  required 462-463 

405.  Marriage  certificates  and  transcripts  of  records  as  evidence — 

Presumption  of  validity — Venue 463 

406.  Bigamous  cohabitation 463-464 


CHAPTER  XXVIII. 

RAPE. 

407.   Rape  defined — The  non-consent  of  the  prosecutrix — Presump- 
tion of  incapacity  to  consent 465-467 

408     Rape  by  infants 467-468 

409.  Relevancy  of  the  victim's  complaints — Proving  the  details  of 

what  she  said  468-469 

410.  Proving  the  details  to  impeach  or  corroborate 469 

411.  Delay  in  making  complaint — Reasons  for  delay 470-471 

412.  Medical  testimony 471^72 

413.  Relevancy  of  the  physical  condition  of  the  prosecutrix 472-473 

414.  The  prosecutrix  as  a  witness— Her  competency  and  credibility — 

Infancy  of  the  prosecutrix  when  rendering  her  incompetent 

as  a  witness 473-475 

415.  The  prior  relations  of  the  parties 475-476 

416.  Proof  of  carnal  knowledge  requisite 476 

417.  The  force  or  fraud  employed— Threats  and  mortal  fear — Failure 

to  make  outcry 477-478 

418.  Reputation  of  the  prosecutrix  for  chastity — Proof  of  specific  un- 

chaste acts  479-481 


XX  TABLE    OF    CONTENTS. 


CHAPTER  XXIX. 

FORGERY,   COUNTERFEITING    AND    FALSE    PRETENSES. 
SECTION.  PAGES. 

419.  Forgery — Definition  and  classification 482-483 

420.  Competency  of  witnesses 483-484 

421.  Variance  in  proving  the  writing 484-485 

422.  Fraudulent  intent  and  guilty  knowledge — Circumstantial  evi- 

dence to  show 485-486 

423.  Evidence  of  similar  crimes  to  show  the  intent— Effect  of  acquit- 

tal— Relevancy  of  possession  of  forged  papers  on  charge  of 
forgery 486-489 

424.  Proof  of  uttering  forged  paper 489 

425.  The  writing  alleged  to  have  been  forged  as  evidence — Primary 

evidence 490-491 

426.  Proving  the  venue 491 

427.  Fictitious  names — Evidence  to  prove  existence  or  non-existence 

of  person 491-492 

428.  Proving  the  corporate  existence  of  the  bank  upon  which  the 

forged  check  is  drawn 492-493 

429.  Proving  the  handwriting — Expert  evidence— Standards  of  com- 

parison    493-494 

430.  Evidence  to  show  that  the  forged  writing  could  not  accomplish 

the  purpose  intended 494-495 

431.  Sufficiency  of  evidence — Pecuniary  condition  of  the  accused 495^196 

432.  Counterfeiting— Elements    of    the    crime — Intent    and    guilty 

knowledge — Evidence  of  similar  offenses 496-497 

433.  Evidence  to  show  that  counterfeit  money  or  implements  for  its 

manufacture  were  found  in  the  possession  of  the  accused 497-498 

434.  Resemblance  to  the  genuine 498-499 

435.  False  pretenses 499-500 

436.  Evidence  to  show  the  intention  of  the  owner 500 

437.  The  intent  to  defraud 501 

438.  Evidence  of  other  similar  crimes  not  inadmissible  when  rele- 

vant to  show  the  intent  to  defraud 502 

439.  The  pretenses  made  and  evidence  to  show  their  falsity 502-503 

440.  The  pretenses  must  have  been  calculated  to  deceive 504 

441.  The  value  of  the  property  obtained 504 

442.  Belief  in  the  false  representations 504-505 

443.  Evidence  of  the  pecuniary  condition  of  the  accused  at  the  date 

of  making  the  representations 505-507 

444.  The  false  pretenses  not  necessarily  verbal 507 

445.  Proving  the  venue 507-508 


TABLE    OF    CONTENTS.  XXI 


CHAPTER  XXX. 

OFFENSES    AGAINST    PUBLIC    JUSTICE. 
SECTION.  PAGES. 

446.  Obstructing  justice  and  resisting  arrest — Proof  of  official  char- 

acter of  officer  resisted — Validity  of  his  appointment 509-510 

447.  Intention  to  obstruct  justice — Evidence  of  threats  or  to  show 

validity  of  warrant 510-511 

448.  Preventing  attendance  of  witnesses 511-512 

449.  False  swearing 512 

450.  Embracery — P^vidence  required „ 512-513 

451.  Bribery  defined — Evidence  of  circumstances  to  prove  corrupt 

intention 513-514 

452.  Judicial  notice  of  official  character  and  acts 514 

453.  Necessity  for  reliance  on  evidence  of  accomplices  in  the  bribery 

— Compulsory  examination  of  accomplice 514-515 

454.  Proving  other  acts  of  bribery 515 

455.  Bribery  of  voters — Judicial  notice  of  elections 515-516 

456.  Extortion — Intent  and   guilty    knowledge — Evidence   to   prove 

ignorance  or  mistake  of  law  or  fact 516-517 

457.  Value  of  the  thing  extorted — Burden  of  proving  exception  to 

statute 517-518 

458.  Compounding   offenses — The   intent  to  screen   the    offender — 

Mode  of  proving  that  a  crime  was  committed 518-519 

459.  Contempt  defined — Inherent  judicial  power  to  punish 519-520 

460.  Direct   and   constructive   contempt  distinguished — Court    may 

take  notice  of  without  evidence 520-521 

461.  Procedure  in  receiving  evidence  of  constructive  contempt 521-522 

462.  Escape  — Distinct  from  prison  breach 522 

463.  Intention  in  permitting  escape— Negligence  of  officer 522-524 

464.  Aiding  prisoner  to  escape 524 

465.  Illegality  of  arrest,  when  relevant 524-525 

466.  Perjury — The  intent  to  swear  to  what  is  false 525-526 

467.  Materiality  of  the  testimony 526 

468.  Number  of  witnesses  required  and  corroboration  of  single  wit- 

ness to  prove  falsity 526-527 

469.  Falsity  of  the  testimony 528 

470.  Proof  of  the  testimony  alleged  to  be  false 528-529 


CHAPTER  XXXI. 

CRIMES    AGAINST    PUBLIC    POLICY,    PUBLIC    PEACE    AND    PUBLIC 

HEALTH. 

471.  Lotteries  and  gaming  or  gambling — What  constitutes 530-531 

472.  Evidence  to  prove  manner  of  playing 531 


XX11  TABLE    OF    CONTENTS. 

SECTION.  PAGES. 

473.  The  bet  or  wager— Playing  in  public 531-533 

474.  Accomplice  evidence 533 

475.  Keeping  gambling  houses 533-534 

476.  Presumptions  and  burden  of  proof 534-535 

477.  Gambling  instruments  as  evidence 535 

478.  Mailing  obscene  literature,  etc 535-536 

479.  Evidence  obtained  by  decoy  letters 536-537 

480.  Adulteration  of  food,  drugs,  etc 537-538 

481.  Evidence  furnished  by  analysis 538-539 

482.  Keeping  disorderly  house 539-540 

483.  Dueling — Sending  a  challenge  to  fight  a  duel 540-541 

484.  Carrying  concealed  weapons — How  concealment  may  be  proved 

—Intent 541-543 

485.  Apprehension  of  danger 544-545 

486.  Character  of  the  defendant  as  an  officer  or  traveler 545-546 

487.  Forcible  entiy  and  detainer 546-547 

488.  Affray 547 

489.  Riot 547-548 

490.  Conspiracy  548-549 

491.  Circumstantial  evidence ' 549-550 

492.  Admissibility  of  acts  and  declarations  of  fellow-conspirators 550-551 

493.  Must  be  made  during  existence  of  and  in  furtherance  of  the 

conspiracy 551-552 

494.  Order  of  proving  conspiracy  to  let  in  declarations 552-553 


CHAPTER  XXXII. 

EVIDENCE     IN     INTERNATIONAL     AND     INTERSTATE    EXTRADITION. 

495.  International  extradition — Treaties  and  statutory  regulation 554-555 

496.  Burden  of  proof  and  amount  of  evidence  required  in  international 

and  interstate  extradition  to  show  criminality  and  other  es- 
sential facts  556-557 

497.  Fugitive  character  of  the  person  claimed  for  extradition 557-559 

498.  Evidential  rules  governing  interstate  extradition 559-560 

499.  Character,  form  and  authentication  of  indictments,  etc.,  in  in- 

terstate extradition 560-561 

500.  Constitutional  and  statutory  regulation  of  the  mode  of  proving 

and  effect  of  records  of  other  states 561-563 

501.  General  rules  regulating  the  taking  of  evidence  in  foreign  extra- 

dition   563-564 

502.  Authentication  by  consular  certificate   of   warrants  and  other 

papers  used  as  evidence  in  international  extradition 564-566 

503.  The  competency  of  certified  copies  as  evidence  of  criminality...  566 

504.  Proof  of  foreign  laws  and  treaties  in  international  extradition...  567-568 

505.  Proof  of  laws  in  interstate  extradition 568 


TABLE    OF    CONTENTS.  XX111 


CHAPTER  XXXIII. 

EVIDENCE    OF    PREVIOUS    CRIME    TO    INCREASE    PENALTY. 
SECTION.  PAGES. 

506.  Statutes  enhancing  the  punishment  of  habitual  criminals 5(59-570 

507.  Constitutionality  of  legislation  punishing  habitual  criminals 570-571 

508.  Conviction  of  the  former  crime  must  have  been  prior  to  the  com- 

mission of  the  crime  now  being  tried 572 

509.  Effect  of  pardon  of  former  crime  in  excluding  proof  of  prior 

conviction 572-573 

510.  Setting  out  the  former  conviction  in  the  indictment — Variance..  573 

511.  Effect  of  plea  of  not  guilty 574 

512.  Order  of  trying  the  issue  of  former  conviction 574-575 

513.  Necessity  of  proving  discharge  from  prison 575 

514.  Proof  of  the  prior  conviction — How  made 575-576 

515.  Proof  of  the  identity  of  the  accused  with  the  person  previously 

convicted 576-577 


CHAPTER  XXXIV. 

NEWLY-DISCOVERED    EVIDENCE. 

516.  General  considerations 578-579 

517.  Diligent  efforts  to  find  and  to  procure  the  evidence  in  season 

must  be  shown 579-581 

518.  Burden  of  proof — The  new  evidence  must  be  set  out  in  the  affi- 

davits    581 

519.  Credibility  of  the  new  evidence 582 

520.  Materiality  and  relevancy  of  the  newly-discovered  evidence 583 

521.  New  evidence  impeaching  merely 583 

522.  The  new  evidence  must  not  be  cumulative  merely 584-585 


CHAPTER  XXXV. 

EVIDENCE    IN    BASTARDY    PROCEEDINGS. 

523.  Bastardy  proceedings — Whether  criminal  or  civil  in  their  char- 

acter   586-588 

524.  Degree  of  proof  required — Doctrine  of  reasonable  doubt  not  ap- 

plicable   588-589 

525.  Evidence  for  the  jury  from  the  inspection  of  the  child 589-591 

526.  Presumption  of  legitimacy 591-592 


XXIV  TABLE    OF    CONTENTS. 

SECTION.  PAGES 

527.  Evidence  rebutting  the  presumption  of  legitimacy 592 

528.  The  relations  of  the  parties 593-595 

529.  Competency  and  credibility  of  the  prosecutrix 595~5<((; 

530.  Variance  in  proving  the  date  of  the  conception 596 

531.  The  reputation  of  the  prosecutrix 596 

532.  Sexual  intercourse  with  other  men  during  the  period  of  gesta- 

tion   597-598 

533.  Admissibility  of  the  admissions  and  declarations  of  the  parties.  598-600 

534.  Evidence  of  the  preliminary  examination 600 

535.  Evidence  of  compromise  and  settlement 601 


TABLE  OF  CASES. 


[References  are  to  Pages.] 


Abbott  v.  People,  86  N.  Y.  460,  387 
Abernethy  v.    Com.,   101  Pa.  St. 

322,  392 

Ackerson  v.  People,  124  N.  Y.  563, 

156,  184,  188 
Ackley  v.  People,  9  Barb.  (N.  Y.) 

609,  95 

Adams  v.  People,  9  Hun  89,  81,  152 
Adams  v.  People,  47  111.  376,  139 

Adams  v.  State,  52  Ala.  379,  362 

Adams  v.  State,  28  Fla.  511, 

62,  270,  284 
Adams  v.  State,  34  Fla.  185,  290 

Adams  v.  State,  29  Ohio  St.  412,  337 
Adams  v.  State  (Tex.,  1894),  19  S. 

W.  Rep.  907,  142 

Adams  v.  Trustee,  37  Fla.  266,  269 
Adams,  Ex  parte,  25  Miss.  883,  520 
Adkins  v.  Com.,  98  Kv.  539,  330,  331 
Adkisson   v.    State,  34   Tex.   Cr. 

Rep.  296,  362,  463 

Adutt,  In  re,  55  Fed.  Rep.  376,  556 
iEtna  L.  I.   Co.  v.  Deming,    123 

Ind.  384,  225 

Agan  v.  Hev,  30  Hun  (N.  Y.)591,  238 
Ageev.  State  (Ala.,  1897),  21  S. 

W.  Rep.  207,  484,  485 

Aguierre  v.  State,  31  Tex.  Cr.  Rep. 

519,  512 

Aholtz  v.  People,  121  111.  560,  580 

Albany  Bank  v.  Schermerhorn,  9 

Paige  Oh.  N.  Y.  372,  522 

Alberty  v.  United  States,  162  U.  S. 

499,  149 

Albin  v.  State,  63  Ind.  598,  189 

Albright  v.  Lapp,  26  Pa.  St.  99,  279 
Albritton  v.  State.  94  Ala.  76, 

186,  188,  189,  190 
Alderman  v.  People,  4  Mich.  414, 

90,  216,  221,  222 
Alexander  v.  State,  99  Ind.  450,  532 
Alexander  v.  State,  21  Tex.  App. 

406,  365 

Alexander  v.  State,  31  Tex.  Crim. 

Rep.  359,  440 


Alexander  v.  United  States,  138 

U.  S.  353,  396 

Alford  v.  State,  25  Fla.  852,  244 

Alfred  v.  State,  37  Miss.  296,  160 

Allen  v.  People,  82  111.  610,  419 

Allen  v.  State,  40  Ala.  334,  433 

Allen  v.  State,  60  Ala.  19,  21 

Allen  v.  State,  111  Ala.  80,  391,  395 
Allen  v.  State,  10  Ohio  St.  287, 

88,  89,  91 
Allen  v.  State,  12  Tex.  App.  190,  163 
Allen  v.  State,  16  Tex.  App.  150,  503 
Allen  v.  United  States,  164  U.  S. 

492,  22,  148,  152,  381 

Allgood  v.  State,  87  Ga.  608,  484,  495 
Allison  v.  State,  14  Tex.  App.  402,  87 
Alston  v.  State,  109  Ala.  51,  416 

Altschular  v.  Algaza,  16  Neb.  631,  595 
Amos  v.  State,  83  Ala.  1,  162 

Amos  v.  State.  96  Ala.  120,  552 

Anderson  v.    Dunn,   6  Wheat. 

(U.  S.)  204,  520 

Anderson  v.  Imhoff,  34  Neb.  335,  269 
Anderson  v.  State,  79  Ala.  5,  140,  141 
Anderson  v.  State,  104  Ala.  83, 

261,  449 
Anderson  v.  State,  14  App.  49,  356 
Anderson  v.  State,  20  Fla.  381,  11 

Anderson  v.  State,  72  Ga.  98,  161 

Anderson  v.  State,  104  Ind.  467, 

26,  73,  148,  477,  479 
Anderson  v.  State,  39  S.  W.  Rep. 

109,  531 

Anderson  v.  State,  41  Wis.  430, 

466,  478 
Andre  v.  State,  5  Iowa  389,  406,  451 
Andreveno  v.  Mutual  Res.  L.  F. 

Ass.,  34  Fed.  Rep.  870,  227 

Aneals  v.  People,  134  111.  401, 

97,  101,  294 
Angelo  v.  People,  96  Cal.  209,  84 

Angus  v.  State,  29  Tex.  App.  52,  390 
Anschicks  v.  State,  6  Tex.  App. 

524,  280 

XV) 


XXVI 


TABLE    OF    CASES. 


[References  are  to  Pages.'] 


Anson  v.  People,  148  111.  494, 

111,487,  488,  489 
Anthony  v.  State,  Meigs  (Tenn.) 

265,  140 

App  v.  State,  90  Ind.  73,  261 

Appleton  v.  State,  61  Ark. 590,  125,  383 
Archer   v.    State,    106  Ind.    426, 

91,  549 
Archibald  v.  State,  122  Ind.  122, 

29,  139 
Arcia  v.  State,  28  Tex.  App.  198,  43 
Armor  v.  State,  63  Ala.  173,  209 

Armstrong  v.  State,  30  Fla.  170, 

193,  195,  196,  199,  202,  203 
Armstrong  v.  State,  14  Ind.  App. 

566,  264 

Arnold  v.  Cheseborough,  41  Fed. 

Rep.  74  219 

Arnold  v.' State,  53  Ga.  574,  461 

Arnold  v.  State,  23  Ind.  170,  17 

Arnold  v.  State,  9  Tex.  App.  435,  151 
Arnold  v.  State,  81  Wis.  278,  265 

Ashford  v.  State,  36  Neb.  38,  433,  439 
Ashwood  v.  State  (Tex.),  40  S. 

W.  Rep.  273 

Ashworth   v.    State,  31  Tex.  Cr. 

Rep.  419,  420 

Askren  v.  State,  51  Ind.  592,  588 

Aszman  v.  State,  123  Ind.  146, 

24,  25,  207 
Attaway  v.  State,  35  Tex.  Cr.  Rep. 

403,  34  S.  W.  Rep.  112,  181 

Attorney-General  v.  Briant,  15  L. 

J.  Exch.  265,  214 

Atwood  v.  Welton,  7  Conn.  66,  250 
Austin  v.  Com.,  40  S.  W.    Rep. 

(Ky.,  1897),  905,  132,397 

Austin  v.  People,  102  111.  261,  82,  83 
Austine  v.  People,  110  111.  248,  329 
Austin  v.  State,  14  Ark.  555,  270 

Avery  v.  State,  10  Tex.  App.  199, 

551   553 
Ayers  v.  State,  88  Ind.  275,  '    90 

Ayers  v.  Watson,  137  U.  S.  584,        61 


B 


Babcock  v.  People,  13  Colo.  515,     298 
Babcock  v.  People,  15  Hun  (N.Y.) 

347,  226,  227,  249,  415,  502 

Baccio  v.  People,  41  N.  Y.  265, 

468,  469,  470,  471 
Bachellor  v.  State,  10  Tex.  258,  532 
Bacon  v.  Frisbie,  80  N.  Y.  394,  216 
Bacon  v.  Harrington,  5  Pick. 

(Mass.)  63,  599 

Bacon  v.  State,  22  Fla.  51,  87,  90 

Bagley  v.  State,  3  Tex.  App.  163,    359 


Bailey  v.  Com.,  82  Va.  107,  470 

Bailey  v.  State,  26  Ga.  579,  244 

Bailey  v.  State,  36  Neb.  808,  445 

Bailey  v.  State  (Tex.,  1897),  38 

S.  W.  Rep.  185,  448,  450 

Bain  v.  State,  61  Ala.  75,  407 

Bain  v.  State,  74  Ala/38,  17 

Bainbridge  v.  State,  30  Ohio  St. 

264,  245 

Bake  v.  State,  21  Md.  422,  587 

Baker  v.  Com.  (Ky.,  1892),  17  S. 

W.  Rep.  625,  281 

Baker  v.  People,  105  111.  452,  411 

Baker  v.  R.  R.  Co.,  L.  R.  3  Q.  B. 

91,  224 

Baker  v.  State,  49  Ala.  350,  545 

Baker  v.  State,  97  Ga.  452,  423,  425 
Baker  v.  State,  56  Wis.  568,  587 

Baker  v.  State,  69  Wis.  32,  594 

Baker  v.  State,  80  Wis.  416,  362 

Balbo  v.  People,  80  N.  Y.  484,  163 

Baldez  v.  State  (Tex.),  35  S.  W. 

Rep.  664,  10 

Baldwin  v.  State,  126  Ind.  24,  315 

Baldwin  v.  State,  1  Sneed  (Tenn.) 

411,  357 

Ball  v.  State,  29  Tex.  App.  107,  389 
Ball  v.  State,  31  Tex.  Cr.  Rep.  214,  297 
Ball  v.  United  States,  163  U.  S. 

662,  262,  274,  376 

Ballard  v.  State,  31  Fla.  266,  86,  327 
Ballinger  v.  Elliot,  72  N.  Car.  596,  317 
Bank  of  Utica  v.  Mersereau,  3 

Barb.  Ch.  (N.  Y.)  398,  219 

Banks  v.  State,  96  Ala.  78, 

444,  445,  447 
Banks  v.  State.  28  Tex.  644,  355 

Barber  v.  People,  17  Hun  (N.  Y.) 

366,  505,  506 

Barneld  v.  State,  29  Ga.  127,  485 

Barefield  v.  State,  14  Ala.  603,  513 
Barker  v.  Kuhn,  38  Iowa  395,  221 

Barlow  v.  State,  120  Ind.  56,  368 

Barnaby  v.  State,  106  Ind.  539,  535 
Barnes  v.  Harris,  7  Cush  576,  217 
Barnes  v.  People,  18  111.  52,  43 

Barnes  v.  State,  88  Ala.  204, 

277,  469,  475,  476,  480 
Barnes  v.  State,  89  Ga.  316,  542 

Barnes  v.  State  (Tex.),  39  S.  W. 

Rep.  684,  261,  448,  449 

Barnes  v.  State,  36  Tex.  356,  162 

Barnett  v.  State,  83  Ala.  40. 

469,  471 ,  474 
Barnett  v.  State  (Tex.,  1896),  33 

S.  W.  Rep.  340,  424 

Barney  v.  People,  22  111.  160,  478 

Barrett  v.  State,  24  Ala.  74,  309 

Barry  v.  Coville,  7  N.Y.  Supp.   36,  217 


TABLE    OF    CASES. 


XXV11 


[References  are  to  Pages."] 


Barthelemy  v.  People,  2  Hill 

(N.  Y.)248,  426 

Bartholomew   v.    People,  104  111. 

001,  259 

Bartley  v.  People,  156  111.  234,  81 

Barton  v.  State,  7  Baxt.  105,  543 

Bartow  v.  People,  78  N.  Y.  377,  348 
Basve  v.  State,  45  Neb.  261, 

96,  217,  272 
Bates  v.  Holladav,  31  Mo.  App. 

162,  77 

Bates  v.   United  States,  10  Fed. 

Rep.  92,  536 

Bathrick  v.  Detroit,  etc.,  Co.,  50 

Mich.  629,  414 

Batten  v.  State,  80  Ind.  394, 

150,  273,  373,  383 
Battishall  v.  Humphrey,  64  Mich. 

511,  269 

Baum  v.  Reay,  96  Cal.  462,  267 

Baumer  v.  State,  49  Ind.  544,  457 

Baxter  v.  State,  34  Tex.  Cr.  Rep. 

516,  31  S.  W.  Rep.  394,  222 

r.avsinger  v.  State,  115  111.  419,  340 
Bavtun   v.   Cattle,  1  Mood.  &  R. 

265,  .  516 

Beach  v.  United  States,  46  Fed. 

Rep.  754,  304 

Bean  v.  People,  124  111.  576, 

476,  478,  580 
Bearden  v.  State,  44  Ark.  331,  249,  284 
Beaty  v.  State,  82  Ind.  228,  346 

Beavers  v.  State,  58  Ind.  530, 

63,  46,  47,  184,  185,  188 
Beck  v.  State,  44  Tex.  430,  360 

Bedgood  v.  State,  115  Ind.  275, 

90,  480 
Bedingfield's  Case,  14  Cox  C.  C. 

341,  394 

Beebees,  Ex  parte,  12  Wall.  Jr.  C. 

C. 127,  522 

Beech's  Case,  1  Leach  Cr.  L.  158,  41 
Beers  v.  Jackman,  103  Mass.  192,  595 
Behler  v.  State,  112  Ind.  140,  295 

Beirlev  v.  Com.,  82  Va.  107,  476 

Belcher  v.  State,  125  Ind.  419,  552 
Bell  v.  State,  73  Ga.  572,  93 

Bell  v.  State,  91  Ga.  15,  339 

Bell  v.  State,  93  Ga.  557,  155 

Bell  v.  State,  57  Md.  108,  487 

Bell  v.  State,  31  Tex.  Cr.  Rep.  276,  77 
Bell  v.  State  (Tex.),  20  S.  W.  Rep. 

362,  580 

Bellinger  v.  People,  4  Wend.(N.  Y.) 

229  303 

Belote  v.  State,  36  Miss.  96,  367 

Ben  v.  State,  37  Ala.  103,  386 

Bench  v.  State  (Ark.,  1897),  39  S. 

W.  Rep.  360,  484 


Benedict  v.  State,  44  Ohio  St.  679, 

215,  217 

Benedict  v.  State,  14  Wis.  423,  391 

Benham  v.  State,  91  Ind.  82,  597 

Bennett  v.  Kroth,  37  Kan.  L':;~>,  309 

Bennett  v.  State,  62  Ark.  516,  4<>r> 
Bennett  v.  State  (Ark.),  36  S.  W. 

Rep.  947,                                    44,  551 
Bennett  v.  State,  8  Humph. 

(Tenn.)  118,  103 

Bennett  v.  State,  24  Tex.  App.  73,  259 
Bennett  v.  State,  28  Tex.  App.  539, 

305,  306 

Bennett  v.  State,  30  Tex.  App. 

341,  184,  190 

Bennifield  v.  State,  62  Ark.  365/ 

277,  369 
Benson  v.  McMahon,  127  U.  S. 

457,  557 

Benson  v.  Shotwell,  103  Cal.  163,  321 
Benson  v.  State,  119  Ind.  488,  382 
Benson  v.  United  States,  146  U.  S. 

325,  86 

Benstine  v.  State,  2  Lea  (Tenn.) 

169,  480 

422  232 

Bentlcy  v.  Crooke,  3  Doug.  (Eng.) 
Bentley  v.  State,  32  Ala.  596,  533 

Benton  v.  Starr,  58  Conn.  285, 

594,  599 

Benton  v.  State,  30  Ark.  350, 

282,  283,  284 

Benton  v.  State  (N.  J.,  1897),  36 

Atl.  Rep.  1041,  425 

Bergen  v.  People,  17  111.  426,  181,  321 
Bergin  v.  State,  31  Ohio  St.  11,  197 
Berneker  v.  State,  40  Neb.  810,  102 
Bernhardt  v.  State,  82  Wis.  23, 

208,  281 

Berry  v.  Com.,  10  Bush  (Ky.) 

15,  181,419 

Berry  v.  State,  92  Ga.  47,  45,  505 

Berry  v.  State,  27  Tex.  App.  483,  424 
Berry  v.  State,  30  Tex.  App.  423,  417 
Berry  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  1038,  136 

Bessette  v.  State,  101  Ind.  85,  272 

Betts  v.  State,  93  Ind.  375,  540 

Beverline  v.  State  (Ind.,  1897),  45 

N.  E.  Rep.  772,  245 

Bice  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  803,  481 

Bickley  v.  Com.,  2  J.  J.  Marsh. 

(Ky.)  572,  313 

Bielschofskv  v.  People,  3  Hun 

CN.  Y.)  40,  HO 

Bigler  v.  Revher,  43  Ind.  112,  221 

Billings  v.  State,  52  Ark.  303,  3W 


xxvm 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Billingsley  v.  Clelland,  41  W.  Va. 

234,  601 

Binfield  v.  State,  15  Neb.  484,  143 

Bingham  v.  Walk,  128  Ind.  164, 

219,  223 
I'.inns  v.  State,  46  Ind.  311,  188 

Binns  v.  State,  57  Ind.  46,  385 

Bird  v.  Com.,  21  Gratt.  (Va.)  800,   463 
Bird  v.  State,  107  Ind.  154,  73,  74 

Bird  v.  State,  27  Tex.  App.  635,      447 
Birdsall   v.   Edgerton,  25  Wend. 

(N.  Y.)619,  586 

Birmingham  v.  Poland,  96  Ala. 

363,  269 

Birmingham  Bank  v.  Bradley,  108 

Ala.  205,  493 

Birmingham  F.  Ins.  Co.  v.  Pulver, 

126  111.  329,  432 

Birney  v.  Slate,  8  Ohio  230,  517 

Biscoe  v.  State,  67  Md.  6,  163 

Bishop  v.  State,  55  Md.  138,     111,  487 
Bishop  v.  State,  62  Miss.  289,  31 

Bissmann  v.  State,  9  Ohio  Cir.  Ct. 

226,  537 

Blackburn  v.  Com.,  12  Bush  (Ky.) 

181,  236,290 

Blackburn  v.  Crawfords,  3  Wall. 

(U.  S.)  175,  221 

Blackburn  v.  State,  23  Ohio  St. 

146,  182,  373 

Blackburn  v.  State,  50  Ohio  St. 

428,  570 

Blackstone  v.  State,  15  Ala.  415,     368 
Blackwell  v.  State,  67  Ga.  76,  66 

Blackwell  v.  State,  34  Tex.  Cr. 

Rep.  476,  31  S.  W.  ReD.  380,  546 

Blake  v.  Rourke,  74  Iowa  519,        203 
Blaker  v.  State,  130  Ind.  203, 

334,  360,  361 ,  362 
Blanc  v.  Rogers,  49  Cal.  15,  256 

Bland  v.  People,  4  111.  364,  46 

Blige  v.  State,  20  Fla.  742,  328 

Blois  v.  State,  92  Ga.  584,  92 

Bloomer  v.  State,  3  Sneed  (Tenn.) 

66,  37 

Bluff  v.  State,  10  Ohio  St.  547,         498 
Blumann  v.  State,  33  Tex.  Crim. 

Rep.  43,  236,  431 

Blyew  v.  Com.,  91  Ky.  200,  244 

Boatmeyer  v.  State,  31  Tex.  App. 

473,    *  278 

Boddie  v.  State,  52  Ala.  395,     474,  479 
Bodifield  v.  State,  86  Ala.  67  444 

Boges  v.  State  (Tex.),  25  S.W.  Rep. 

770,  46 

Boisseau  v.  State  (Tex.,  1890),  15 

S.  W.  Rep.  118,  543 

Boland  v.  State,  19  Hun  (N.  Y.) 

80,  366 


Boles  v.  State,  86  Ga.  255,  543 

Boiling  v.  State,  54  Ark.  548, 

196,  202,  375 
Bolln  v.  State  (Neb.),  71  N.  W. 

Rep.  444,  350 

Bolton  v.  State  (Tex.,  1897),  39 

8.  W.  R.  672,  419 

Bond  v.  Com.,  83  Va.  581,  430,  584 
Bond  v.  State,  21  Fla.  738,  265 

Bone  v.  State,  86  Ga.  108,  266 

Bonnard  v.  State,  25  Tex.  App. 

173,  274 

Bonner  v.  State,  107  Ala.  97,  383 

Bonner  v.  State  (Ala.,  1896),  18 

So.  Rep.  226,  340 

Bonners  v.  State  (Tex.,  1897),  35 

S.  W.  Rep.  650,  365 

Bonnet  v.  Gladdfeldt,  24  111.  App. 

533,  269,  276 

Bookhout  v.  State,  66  Wis.  415, 

588,  596 
Bookserv.  State,  26  Tex.  App.  593,  154 
Boone  v.  People,  148  111.  440,  38,  39 
Boothe  v.  Hart,  43  Conn.  480,  588 

Boothe  v.  State,  4  Tex.  App.  202,  396 
Boren  v.  State,  23  Tex.  App.  28,  61 
Borer  v.  Lange,  44  Minn.  281,  61 

Bork  v.  People,  16  Hun  476,  351 

Borrego   v.   Terr.  (N.  M.,  1897), 

46  Pac.  Rep.  349,  184 

Borroum  v.  State  (Miss.),  22  So. 

Rep.  62,  329 

Boscowitz,  Ex  parte,  84  Ala.  463, 

300,  305 
Bostic  v.  State,  94  Ala.  45,  261,  341 
Bostock  v.  State,  61  Ga.  635,  282 

Boston,  etc.,  Co.  v.  Dana,  1  Gray 

(Mass.)  83,  56 

Boswell's  Case,  20  Gratt.  (Va.) 

860,  197,  208 

Bottomley  v.  U.  S.,  1  Story  C.  C. 

135,  109,  498 

Boulden  v.  State,  102  Ala.  78,  301 

Bouldin  v.  State,  8  Tex.  App.  332, 

400,  437 
Bourden  v.  Bailes,  101  N.  C.  612,  265 
Bowden  v.  Achor,  95  Ga.  245,  204 

Bowen  v.  Reed,  103  Mass.  46,  557 
Bowers  v.  State,  29  Ohio  St.  542, 

216,  449,  450 
Bowers  v.  State,  24  Tex.  App. 

542,  421 

Bowers  v.  Wood,  143  Mass.  182, 

595  599 
Bowler  v.  State,  41  Miss.  570,  501,'  502 
Bowlus  v.  State,  130  Ind.  227,  419 

Bowman  v.  State  (Tex.,  1893),  21 

S.  W.  Rep.  48,  386 


TABLE    OF    CASKS. 


XXIX 


[Beferences  are  to  Pages."] 


Boyce  v.  Auditor  General,   90 

Mich.  314,  57 
Boyce  v.  People,  55  N.  Y.  644, 

451,  455 

Boyd  v.  State,  33  Fla.  316,  22 
Boyd  v.  State,   14  Lea  (Tenn.) 

161,                                            285,  373 

Boyd  v.  State,  94  Tenn.  505,  302 
Boyd  v.  United  States,  116  U.  S. 

616,  73 
Boyd  v.  United  States,  142  U.  S. 

450,                                            256,  257 

Boyett  v.  State,  26  Tex.  App.  689,  328 

Boykin  v.  Boykin,  70  N.  Car.  212,  593 

Bovkin  v.  State,  34  Ark.  4415,  360 

Bovle  v.  State,  97  Ind.  322,      393,  394 
Bovle  v.  State,  105  Ind.  469, 

76,  293,  381 
Bovle  v.  State,  6  Ohio  Cir.  Ct. 

Rep.  163,  423 

Boyle  v.  State,  61  Wis.  440,     372,  373 
Bracken  v.  State,  111  Ala.  753, 

275,  450,  455 

Bradford  v.  People,  22  Colo.  157,  304 

Bradley  v.  State,  103  Ala.  29,  421 
Bradshaw  v.   Com.,  10    Bush 

(Ky.)  576,                                126,  395 

Bradshaw  v.  State,  153  111.  156,  407 
Brady  v.  State  (Tex.,  1894),  26 

S.  W.  Rep.  621,  367 
Bramlette  v.  State,  21  Tex.  App. 

till,  232 

Branch  v.  State,  41  Tex.  622,  369 

Brandon  v.  People,  42  N.  Y.  265,  77 
Brandt  v.  Klien,  17  Johns.  N.  Y. 

335,  222 

Branson  v.  State,  92  Ky.  1077,  360 

Brard  v.  Ackerman,  5  Esp.  119,  222 

Brashears  v.  State,  58  Md.  563,  84 
Brasier's  Case,  1  Leach  Cr.   C. 

237,  254 

Brassell  v.  State,  91  Ala.  45,  261 

Brauer  v.  State,  25  Wis.  413,    471,  476 
Breen,  In  re,  73  Fed.  Rep.  458, 

556,  565 
Brennan  v.  People,  7  Hun  (N.  Y.) 

171,  480 
Bressler  v.  People,  117  111.  422, 

21,  273,  294 

Brevaldo  v.  State,  21  Fla.  789,  444 
Brewer  v.  State,  32yTex.  Cr.  Rep. 

74,  491 
Briceland  v.  Com.,  74  Pa.  St.  463, 

85, 188 

Briffltt  v.  State,  58  Wis.  39,  28 

Briggs  v.  Briggs,  20  Mich.  40,  226 

Briefs  v.  Coleman,  51  Ala.  561,  309 

Briggs  v.  Com.,  82  Va.  554,  292 

Brill  v.  State,  1  Tex.  App.  152,  245 


Brinkley  v.  State,  58  Ga.  296, 
Briscoe  v.  state  (Ga.,  1897),  20  S. 

E.  Rep.  211, 
Brister  v.  State,  26  Ala.  107,     154, 
Britt  v.  State,  21  Tex.  App.  215, 
299,  352, 
Britton  v.  State,  115  Ind.  55, 
Broad  v.  Pitt,  :!  0.  &  P.  519, 
Broadbent  v.  State  (Mont.,  1897), 

48  Pac.  Rep.  775, 
Brock  v.  Com.,92Ky.  183, 
Brogy  v.  Com.,  10  Gratt.   (Va.) 

722,  321, 

Brooks  v.  Com.,  98  Ky.  143, 
Brooks  v.  People  (Colo.,  1897),  48 

Pac.  Rep.  502,  46 

Brooks  v.  State,  96  Ga.  353,      395, 
Brooks  v.  State  (Tex.,  1894),  27 

S.  W.  Rep.  141, 
Brooks  v.  State,  29  Tex.  App.  532, 
Brotherton  v.  People,  75  N.  Y. 

159,  137,  197, 

Browder  v.  State,  102  Ala.  164, 
Brown,  Ex  parte,  72  Mo.  483,  227, 
Brown  v.  Com.,  91  Ky.  472, 
Brown  v.  Com.,  73  Pa.  St.  321, 

135,  322, 
Brown  v.  Com.,  76  Pa.  St.  319, 

109, 
Brown  v.  Com.,  82  Va.  653,      466, 
Brown  v.  Com.,  86  Va.  935, 
Brown  v.  Com.,  87  Va.  215, 
Brown  v.  Jewett,  120  Mass.  215, 
Brown  v.  Mooers,  6  Gray  (Mass.) 

451, 
Brown  v.  Payson,  6  N.  H.  443, 
Brown  v.  People,  16  Hun  (N.  Y.) 

535 
Brow'n  v.  People,  86  111.  239, 
Brown  v.  State,  46  Ala.  175, 
Brown  v.  State,  79  Ala.  61, 
Brown  v.  State,  105  Ala.  117, 
Brown  v.  State,  108  Ala.  18, 
Brown  v.  State,  28  Ark.  126, 
Brown  v.  State,  55  Ark.  593, 
Brown  v.  State,  29  Fla.  543, 
Brown  v.  State,  59  Ga.  456, 
Brown  v.  State,  76  Ga.  623, 
Brown  v.  State,  71  Ind.  470, 
Brown  v.  State,  105  Ind.  385, 
Brown  v.  State,  72  Md.  477, 

271,  276, 


373, 


294, 


XXX 


TABLE    OP    CASES. 


[References  are  to  Pages. ] 


Brown  v.  State,  1  Pick.   (Tenn.) 

439,  327 

Brown  v.  State,  32  Tex.  Cr.  Rep. 

119,  329,  507 

Brown  v.  State,  34  Tex.  Cr.  Rep. 

150,  •      363 

Brown  v.  State  (Tex.,  1893),  20  S. 

W.  Rep.  924,  304 

Brown  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  1008,  506 

Brown  v.  United  States,  164  U.  S. 

221,  291 
Brown  v.  Walker,  161  U.  S.  591,  305 
Brownell  v.  People,  38  Mich.  732, 

103,  386 
Browning  v.  State,  33  Miss.  47,  332 
Browning  v.  State,  30  Miss.  656,  551 
Broyles  v.  State,  47  Ind.  251,  155 

Bruce  v.  State,  31  Tex.  Cr.  App. 

590,  294 

Brumley  v.  State,   21   Tex.   App. 

222,  118,  124 
Brungger  v.  Smith,  49  Fed.  Rep. 

124,  217 

Bryan  v.  State,  74  Ga.  393,  364,  437 
Bryant,  In  re,  80  Fed.  Rep.  282,  557 
Bryant  v.  State,  80  Ga.  272,  46 

Bubster  v.  State,  33  Neb.  663,  355 

Buchanan  v.  State,  55  Ala.  154,  446 
Buchanan  v.  State,  109  Ala.  7,  356 
Bueno  v.  People  (Colo.),  28  Pac. 

Rep.  248,  460 

Bull  v.  Loveland,  10  Pick.  (Mass.) 

9,  312 

Bulloch  v.  State,  10  Ga.  47,  347 

Bullock  v.  Knox,  96  Ala.  195,  591 

Buoldon  v.  State,  102  Ala.  78,  15 

So.  Rep.  341,  133 

Burchfield  v.  State,  82  Ind.  580,  332 
Burdge  v.  State,  53  Ohio  St.  512,  438 
Burger  v.  State,  34  Neb.  397,  428 

Burk  v.  State,  81  Ind.  128,  245 

Burker  v.  State,  34  Ohio  St.  79,  348 
Burks  v.  State,  92  Ga.  461,  437 

Burnham  v.  State,  37  Fla.  327,  427 
Burnett  v.  State,  37  Atl.  Rep.  622,  347 
Burnett  v.  State,  30  Ala.  19,  533 

Burnett  v.  State,  87  Ga.  622,  165,  325 
Burney  v.  State  (Ga.),  25  S.  E. 

Rep.  911,  17 

Burrell  v.  Bull,  3  Sandf.  Ch.  (N. 

Y.)  15,  231 

Burrell  v.  State,  18  Tex.  713,  140 

Burress  v.  Com.,  27  Gratt.  (Va.) 

934,  484 

Burris  v.  Court,  34  Neb.  187,  597 

Burris  v.  State,  38  Ark.  221,  145 

Burr's  Case,  1  Burr's  Trial  131, 

176,  278 


Burst  v.  State,  89  Ind.  133,  542,  546 
Burt  v.  State  (Tex.,  1897),  40  S. 

W.  Rep.  1000,  204 

Burton  v.  State,  107  Ala.  180,  65,  383 
Burton  v.  State  (Ala.,  1895),  18 

So.  Rep.  284,     146,  161,  169,  375,  376 
Burton  v.  State,  33  Tex.  Cr.  Rep. 

138,  177 

Butler  v.  State,  22  Ala.  43,  490 

Butler  v.  State,  91  Ala.  87,  97,  350 
Butler  v.  State,  91  Ga.  161,  265 

Butler  v.  State,  33  Tex.  Cr.  Rep. 

232,  395 

Butler  v.  State  (Tex.,  1897),  37  S. 

W.  Rep.  746,  526 

Bush  v.  Com.,  80  Ky.  244, 

234,  250,  324 
Bush  v.  State,  18  Ala.  415,  355 

Buskett,  Ex  parte,  106  Mo.  602,  304 
Buzard  v.  McAnultv,  77  Tex.  438,  63 
Byers  v.  State,  105  Ala.  31,  383 


c 


Cady  v.  Com.,  10  Gratt.  (Va.)776, 

492  493 
Cady  v.  Walker,  62  Mich.  157,  19',  217 
Cahn  v.  State,  110  Ala.  56,  559 

Calkins  v.  State,  18  Ohio  St.  366, 

83,  349 
Callaghan  v.  State,  38  S.  W.  Rep. 

188,  540 

Callison  v.  State  (Tex.,  1897),  39 

S.  W.  Rep.  300,  115,  263 

Cameron  v.  State,  14  Ala.  546.  27,  459 
Cameron  v.  State,  44  Tex.  652,  363 
Campau  v.  North,  38  Mich.  606,  226 
Campbell  v.  Chace,  12  R.  I.  333,  234 
Campbell  v.  Com.,  84  Pa.  St.  187,  85 
Campbell  v.    Dalhousie,  L.  R.  1 

H.  L.  496,  312 

Campbell  v.  People,  16  111.  17,  390 
Campbell  v.  State,  23  Ala.  44, 

58,  400,  383 
Campbell  v.  State,  38  Ark.  498,  388 
Campbell  v.  State,  11  Ga.  353,  140 
Cancemi  v.  People,  16  N.  Y.  501, 

96,  100,  104 
Cannon  v.  People,  141  111.  270, 

261,  263 
Cannon  v.  State,  60  Ark.  564,  328 

Cannon  v.  State,  18  Tex.  App.  172,  359 
Canter  v.  State  (Tex.,  1897),  10  S. 

W.  Rep.  757,       •  538 

Canter  v.  State,  7  Lea  (Tenn.)  349. 

500,  503 
Card  v.  Foot,  56  Conn.  369,  267 


TABLE    OF    CASES. 


XXXI 


[References  are  to  Pages."] 


Card  v.  State,  109  Ind.  415, 

487,  550,  551,  552 
Carden  v.  State,  84  Ala.  417,  150 

Cargill  v.  Com.,  93  Kv.  578,  281 

Carlisle  v.  State,  76  Ala.  75,  501 

Carlton  v.  Com.  (Ky.),  18  S.  W. 

Rep.  535,  277 

Carlton  v.  People,  150  111.  181, 

8  9   19   184 
Carman  v.  Kelly,  5  Hun  (N.  Y.) 

283,  321 

Carmichael  v.  State,  11  Tex.  App. 

27,  545 

Carnell  v.  State   (Md.,   1897),  36 

Atl.  Rep.  117,  502,503 

Carney  v.  State,  79  Ala.  14,  449 

Carpenter     v.    People,    8    Barb. 

(N.  Y.)  603,  456 

Carpenter  v.  People,  3  Gilm.  (111.) 

147,  •     309 

Carpenter  v.  State,  62  Ark.  286, 

17,  294 
Carr  v.  State,  34  Ark.  448, 

542,  543,  546 
Carr  v.  State,  43  Ark.  99,  124 

Carr  v.  State,  96  Ga.  284,  242 

Carr  v.  State,  23  Neb.  749,  391,  392 
Carr  v.  State,  24  Tex.  App.  562,  407 
Carreker  v.  State,  92  Ga.  471,  363 

Carroll  v.  Com.,  84  Pa.  St.  170,  91 

Carroll  v.  People,  136  111.  456,  17,  355 
Carroll  v.  State,  5  Neb.  31,  88,  283 
Carroll  v.  State,  3  Humph. (Tenn.) 

315,  119 

Carroll  v.  State,  32  Tex.  Cr.  Rep. 

431,  301 

Carson  v.  State,  50  Ala.  134,  100 

Carter  v.  Com.,  2  Va.  Cas.  169,  98 
Carter  v.  State,  68  Ala.  96,  435 

Carter  v.  State,  2  Ind.  617,  414 

Carter  v.  State,  36  Neb.  481,  98,  297 
Carthaus  v.  State,  78  Wis.  560, 

102,  329,  372 
Carver  v.  People,  39  Mich.  86, 

486,  487 
Carver  v.  United  States,  164  U.  S. 

694,  132,  140 

Carwile  v.  State,  35  Ala.  392,  547 

Casat  v.  State,  40  Ark.  511,  207 

Case  v.  Blood,  71  Iowa  632,  326 

Casey  v.  People,  31  Hun  (N.  Y.) 

158,  199 

Casey  v.  State,  37  Ark.  67,  215,  552 
Casey  v.  State,  20  Neb.  138,  584 

Cassem  v.  Galvin,  158  111.  30,  262 

Cast  v.  State,  40  Ark.  511,  196 

Castillo  v.  State,  31  Tex.  Cr.  Rep. 

145,  4C»!) 

Castle  v.  State,  75  Ind.  146,   22,  24,  25 


Cathcart  v.  Com.,  37  Pa.  St.  108, 

105,  145,  106 
Cavendarv.  State,  126  Ind.  47,  10, 100 
Central  Nat.  Bank  v.  Arthur,  2 

Sweeney  (N.  Y.)  194,  312 

Chafie  v.  Jones,  19  Pick.  (Mass.) 

260,  317 

Chahoon  v.  Com.,  20  Gratt.  (Va.) 

733  489 

Chalk  v.  State,  35  Tex.  Cr.  Rep. 

1 16,  32  S.  W.  Rep.  534,  121,  384 

Chamberlain,  Ex  parte,  4  Cow. 

(N.  Y.)49,  309,310 

Chamberlain  v.  People,  23  N.  Y. 

85,  592,  593 

Chambers  v.  People,  4  Scam.  (111.) 

351,  261 

Chambers  v.  State,  62  Miss.  108,  362 
Chamblessv.  State,  24  S.  W.  Rep. 

899,  302 

Chandler  v.  Thompson,  30  Fed. 

Rep.  38,  579 

Chant  v.  Brown,  12  Eng.  L.  &  Eq. 

299,  219 

Chapman  v.  Gates,  54  N.  Y.  132,  52 
Chapman  v.  .Tames  (Iowa),  64  N. 

W.  Rep.  795,  276 

Chapman  v.  Peebles,  84  Ala.  284,  218 
Chapman  v.  State,  78  Ala.  463,  416 
Chapman  v.  State  (Tex.),  30 S.  W. 

Rep.  225,  328 

Chappel  v.  State,  7  Coldw.  (Tenn.) 

92,  184 

Charlton's  Case,  2  My.  &  Cr.  316,  314 
Charnock's  Case,  12  How.  St.  Tr. 

1377,  90 

Chase  v.  People,  40  111.  352,  196 

Chase  v.  State,  46  Miss.  683,  386 

Chastang  v.  State,  83  Ala.  29,  543 

Cheesum  v.  State,  8  Black.  (Ind.) 

332,  533 

Chenowith  v.  Com.,  12  S.  W. 

Rep.  585,  571 

Cherry  v.  State,  68  Ala.  29,  407 

Cherry  v.  State  (Miss.,  1891),  20 

Rep.  837,  381 

Chestnut  Hill,  etc.,  Co.  v.  Piper, 

15  Weekly  Notes  55,  62 

Chew  v.  State,  23  Tex.  App.  230,  446 
Chicago,  etc.,  Co.  v.  Hazels,  26 

Neb.  364,  276 

Chicago,  etc.,  Co.  v.  Shenk,  131 

111.  283,  279,  280 

Chicago,  etc.,  Co.  v.  Woodward, 

47  Kan.  191,  266 

Childs  v.  State  (Tex.),  22  P.  W. 

Rep.  1039,  328 

Chism  v.  State,  70  Miss.  742,   288,  290 


XXX11 


TABLE    OF    CASES. 


[Beferences  are  to  Pages."] 


Chitister  v.  State,  33  Tex.  Cr.  R. 

635,  9 

Choice  v.  State,  31  Ga.  424,  201,  203 
Chrisman  v.  State,  54  Ark.  283, 

207,  401 
Christian  v.  State,  37  Tex.  475,  543 
Christian  v.  Williams,  35  Mo. 

A  pp.  297,  316,317 

Chute  v.  State,  19  Minn.  271,  282 

Cicero  v.  State,  54  Ga.  156,  51 

City  of  Springfield  v.  Dalby,  139 

111.  34,  275 

Clapp  v.  State,  94  Tenn.  186,  108 

Clark  v.  Bradstreet,  80  Maine  454,  590 
Clark  v.  Com.  (Ky.,  1890),  32  S. 

W.  Rep.  131,  148 

Clarke  v.  State,  78  Ala.  474,  392 

Clark  v.  State,  84  Ga.  577,  416 

Clark  v.  State,  14  Ind.  26,  357 

Clark  v.  State,  50  Ind.  514,  74 

Clark  v.  State,  58  N.  J.  L.  383,  177 
Clark  v.  State,  12  Ohio  483,  202,  203 
Clark  v.  State,  29  Tex.  App.  437,  353 
Clark  v.  State,  30  Tex.  App.  402, 

361, 
Clark  v.  State  (Tex.,  1897),  40  S. 

W.  Rep.  939, 
Clarke  v.  People,  16  Colo.  511, 
Clarke  v.  State,  8  Crim.  L.  Mag. 

19, 
Claxon  v.  Com.  (Ky.,  1895),  30  S. 

W  Rep.  998, 
Clay  v.  State  (Miss.,  1897),  22  So. 

Rep.  62, 
Clay  v.  Williams,  2  Muni.  105, 
Clayton  v.  State,  31  Tex.  Crim. 

Rep.  489,  173,  301 

Clem  v.  State,  33  Ind.  418,  299 

Clem  v.  State,  42  Ind.  420,  22 

Clements  v.  State,  21  Tex.  App. 

288, 
Cleaveland  v.  State,  34  Ala.  254, 
Cleveland  v.  State,  86  Ala.  1, 
Cleveland,  etc.,  Co.  v.  Monaghan, 

140  111.  474, 
Clifton  v.  State,  26  Fla.  523, 
Cline  v.  State,  51  Ark.  140, 
Cline  v.  State  (Tex.,  1099),  36 

S.  W.  Rep.  323, 
Close  v.  Samm,  27  Iowa  503, 
Cloush  v.  State,  7  Neb.  320, 
Cluck  v.  State,  40  Ind.  263, 

46,  96,  98,  208 
Cluverius  v.  Com.,  81  Va.  787,  9,  124 
Coates  v.  Birch,  2  Q.  B.  252,  218 

Coates  v.  State,  50  Ark.  330,  466 

Coble  v.  State,  31  Ohio  St.  100,  108,  259 
Coburn  v.  State  (Tex.,  1896),  36 

S.  W.  Rep.  442,  458 


362 

582 
413 

148 

327 

510 

223 


43 

517 
32 

64 
440 
292 

500 

282 
166 


Coffee  v.  State,  25  Fla.  501, 
Coffee  v.  State,  4  Lea  245, 
Coffee  v.  State,  ITex.  App.  548, 
Cohen,  Ex  parte,  5  Cal.  494, 
Cohen  v.  State,  17  Tex.  78, 
Colbert  v.  State,  91  Ga.  705, 
Cole  v.  State,  59  Ark.  50,  102,  291, 
Cole  v.  State,  6  Baxter  (Tenn.) 

239 
Cole  v.  State,  4  So.  Rep.  577, 
Colee  v.  State,  75  Ind.  511, 

203,  205, 
Coleman  v.  Com.,  25  Gratt.  (Va.) 

865, 
Coleman  v.  People,  55  N.  Y.  81, 

108, 
Coleman  v.  State,  26  Fla.  61, 
Coleman  v.  State,  21  Tex.  App.  520, 
Coleman  v.  State,  28  Tex.  App. 

173, 
Coleman  v.  State  (Tex.,  1897),  33 

S.  W.  Rep.  1083, 
Collier  v.  State,  55  Ala.  125, 
Collier  v.  State,  20  Ark.  36, 

86,  142, 
Collins  v.  Com.,  12  Bush  (Ky.) 

271,  152,  321, 

Collins  v.  Com.  (Ky.,  1894),  25 

S.  W.  Rep.  743, 
Collins  v.  Mack,  31  Ark.  693, 
Collins  v.  People,  39  111.  233, 
Collins  v.  People,  98  111.  584,       90 
Collins  v.  State,  46  Neb.  37,     129, 
Collins  v.  State,  24  Tex.  App.  141, 
Colter  v.  State  (Tex.),  39  S.  W. 

Rep.  576, 
Colton  v.  State,  7  Tex.  App.  50, 
Colwell  v.  State  (Tex.,  1897),  34 

S.  W.  Rep.  615, 
Combs  v.  Com.,  93  Ky.  313, 
Comer  v.  State,  20  S.W.  Rep.  547, 
Commissioners  v.  Ballinger,  20 

Kan.  590, 


Com.  v. 
Com.  v. 

120, 
Com.  v. 

Com.  v. 
Com.  v. 
Com.  v. 
Com.  v. 
Com.  v. 

185, 
Com.  v. 
Com.  v. 
Com.  v. 
Com.  v. 

279, 


Abbott,  130  Mass.  472, 
Abbott,  13  Mete.  (Mass.) 


20 


Ackland,  107  Mass.  211, 

Adams,  114  Mass.  323, 
Adams,  127  Mass.  15, 
Adams,  160  Mass.  310, 
Allen,  135  Pa.  St.  483, 
Anthes,  5  Gray  (Mass.) 


Austin,  97  Mass.  595,  244, 
Ayer,  3Cush.  (Mass.)  150, 
Bacon,  135  Mass.  521, 
Bagley,  7  Pick.  (Mass.) 


165 
544 

96 
519 
532 
436 
296 

444 
100 

264 

251 

111 

9 

42 

544 

178 
517 

280 

322 

438 
226 
357 
,  91 
275 
160 

251 

329 

353 

291 
467 

309 
396 

337 

46 
'417 
413 
531 
472 

334 

245 
488 
218 

517 


TAJJLK    OF    OASES. 


XXX  111 


[References  are  to  Pages.] 


Com.  v.  Baker,  155  Mass.  287,  86,  533 
Com.  v.  Bangs,  9  Mass.  387,  45!) 

(\.in.  v.  Barker,  133  .Mass.  :?99,  52-1 
Com.  v.  Barry,  124  Mass.  825,  501 
Cum.  v.  Barry,  8  Pa.  Co.  Ct.  Rep. 

216,  77 

Com.  v.  Battis,  1  Mass.  95,  177 

Com.  v.  Beaman,  8  Gray  (Mass.) 

497,  356 

Com.  v.  Bell,  145  Pa.  St.  374,  303,515 
Com.  v.  Bell,.  166  Pa.  St.  405,  115 

Com.  v.  Bigelow,  8  Mete.  (  Mass.) 

I':;:.,  497, 498 

Com.  v.  Bishop,  1(55  Mass.  148,  129 
Com.  v.  Blair,  L26  Mass.  40,  413 

Com.  v.  Blankington,    165   Mass. 

40,  533 

Com.  v.  Blood,  11  Gray  (Mass.)74,  61 
Com.  v.  Blood,  141  Mass.  571 ,  501 ,  502 
Com.  v.  Bond,  101  Mass.  209,  495 

Com.  v.  Bonner,  9  Met.  (Mass.) 

410,  425 

Com.  v.  Bonner,  97  Mass.  587,  77 

Com.  v.  Boot,  Thatcher  Cr.  Cas. 

390,  541 

Com.  v.  Bosworth,  22  Pick.  (Mass.) 

397,  90,  93 

Com.  v.  Bosworth,  113  Mass.  200,  245 
Com.  v.  Boutwell,  120  Mass.  124,  483 
Com.  v.  Bowers,  121  Mass.  45,  115 
Com.  v.  Bover,  7  Allen  (Mass.) 

306,  459 

Com.  v.  Boyton,  116  Mass.  343,  410 
Com.  v.  Brailey,  134  Mass.  527, 

154,  157 
Com.  v.  Bradford,  126  Mass.  42, 

111,  431 
Com.  v.  Branham,  8  Bush  (Kv.) 

387,  418 

Com.  v.  Brewer,  164  Mass.  577, 

129,  138 
Com.  v.  Briges,  7  Pick.  (Mass.) 

177,  576 

Com.  v.  Brigham.  147  Mass.  414,  148 
Com.  v.  Brooks,  9  Gray  299,  91,  92 
Com.  v.  Brown,  14  Gray  (Mass.) 

419,  59,  410,  550 

Com.  v.  Brown,  121  Mass.  09,  154,  414 
Com.  v.  Brown,  130  Mass.  279,  88 

Com.  v.  Brown,  147  Mass.  585,  486 
Com.  v.  Brown,  149  Mass.  35,  182 

Com.  v.  Brown,  150  Mass.  330,  177 
Com.  v.  Buccieri,  153  Pa.  St.  535, 

200,  201,  202,  204 
Com.  v.  Bush,  2  Duv.  ( Kv.)  264,  256 
Com.  v.  Butland,  119  Mass.  317,  527 
Com.  v.  Bvron,  14  Gray  (Mass.) 

31,  274 

hi— Cr.  Ev. 


Com.  v.  Call,  21  Pick.  (Mass.)  515, 

L09,  111',  L60,  501 
Com.  v.  Campbell,  155  Mass.  .",:;7. 

64,  ii9 
Com.  v.  Caponi,  155  Mass.  534,  459 
Com.  v.  Carey,  12  Cash.  (Mae 

240,  139 

Com.  v.  Carey,  2  Pick.  (Mass.)  47, 

494 
Com.  v.  Carter,  11  Pick.  (Mass.) 

277,  315 

Com.  v.  Cartwright,  114  Mass.  230, 

520,  524 
Com.  v.  Casey,  11  Cush.  (Mass.) 

417,  136,  112 

Com.  v.  Castles,  9  Gray  (Mass.) 

121,  121 

Com.  v.  Chaney,  148  Mass.  0,  261 

Com.  v.  Chilson,  2  Cush.  (Mass.) 

15,  245 

Com.  v.  Choate,  105  Mass.  451, 

112,  114,  188 
Com.  v.  Clancv,  154  Mass.  128, 

267,  268,  534 
Com.  v.  Clark,  130  Pa.  St.  641,  166 
Com.  v.  Cleary,  152  Mass.  491,  233 
Com.  v.  Clearv,  148  Pa.  St.  20, 

323,  391 
Com.  v.  Clifford,  90  Kv.  4,  346 

Com.  v.  Cloonen,  151  Pa.  St.  605,    209 
Com.  v.  Coe,  115  Mass.  481, 

489,  501 ,  502 
Com.  v.  Coleman,  157  Mass.  400,  539 
Com.  v.  Connolly,  11  Pa.  Co.  Ct. 

Rep.  414,  485 

Com.  v.  Coolev,  6  Gray  (Mass.) 

350,  510 

Com.  v.  Cooper,  5  Allen  (Mass.) 

495,  133,  413 

Com.  v.  Corkin,  136  Mass.  429,        410 
Com.  v.  Cossebbom,  155  Mass.  298, 

341 
Com.  v.  Costello,  119  Mass.  214,  153 
Com.  v.  Costello,  120  Mass.  358, 

491,  492 
Com.  v.  Costlev,  118  Mass.  1, 

9,  19,40,  47 
Com.  v.  Cox,  7  Allen  (Mass.)  577, 

368,  369 
Com.  v.  Cov,  157  Mass.  200,  16S,  375 
Com.  v.  Crowe,  165  Mass.  139,  431 
Com.  v.  Cullen,  111  Mass.  435,  165 
Com.  v.  Culver,  126  Mass.  464, 

161,  162 
Com.  v.  Curtis,  Thach.  Cr.  C.  202, 

214 
Com.  v.  Daley,  4  Gray  (Mass.)  209,  215 
Coin.  v.  Dame,  8  Cush.   (Mass.) 
384,  259 


XXXIV 


TABLE    OF    CASES. 


[Beferences  are  to  Pages. ] 


Com.  v.  Dandridge,   2  Va.   Cas. 

408,  522 

Com.  v.  Danile,  4  Pa.  L.  J.  R.  49,  317 
Com.  v.  Davis,  1  W.  N.  C.  Pa.  18,  522 
Com.  v.  Dedham,  141  Mass.  147,  348 
Com.  v.   Dennie,   Thacher   Crim. 

Case  Mass.  165,  517 

Com.  v.  Densmore,  94  Mass.  535,  179 
Com.  v.  Desmond,  103  Mass.  445,  29 
Com.  v.  Devlin,  141  Mass.  423,  501 
Com.  v.  Dill,  1-56  Mass.  226,  274 

Com.  v.  Dillane,  11  Gray  (Mass.) 

07,  245 

Com.  v.  Doan,  5  Pa.   Dist.   Rep. 

211,  512 

Com.  v.  Donovan,  13  Allen  (Mass.) 

571,  44 

Com.v.  Dorsey,  103  Mass.  412,  208, 398 
Com.  v.  Downing,  4  Gray  (Mass.) 

29,  85 

Com.  v.  Drake,  15  Mass.  161,  224 

Com.  v.  Drass,  146  Pa.  St.  55,  368 

Com.  v.  Drew,   19  Pick.    (Mass.) 

179,  503,  517 

Com.  v.  Drew,  153  Mass.  588,  501,  505 
Com.  v.  Drum,  58  Pa.  St.  9,  18,  381 
Com.  v.  Easland,  1  Mass.  15,  235 

Com.  v.  Eastman,  1  Cush.  (Mass.) 

189,  87,  111,  347,  493,  502 

Com.  v.  Eddy,  7  Gray  (Mass.)  583, 

32,  197 
Com.  v.  Edgerly,  10  Allen  184, 

487,  496,  497 
Com.  v.  Eisenhower  (Pa.,  1897),  37 

Atl.  Rep.  521,  79 

Com.  v.  Emery,  2  Gray   (Mass.) 

80,  52 

Com.  v.  Emery,  107  Mass.  172,  73 

Com.  v.  Emmons,  98  Mass.  6,  408 

Com.  v.  Evans,  101  Mass.  25,  244 

Com.  v.  Evans,  132  Mass.  11,  537 

Com.  v.  Fagan,  12  Pa.  Co.  Ct.  Rep. 

613,  47 

Com.  v.  Falvey,  108  Mass.  304,  370 
Com.  v.  Ferrigan,  44  Pa.  St.  386, 

113,  114,  385,  386 
Com.  v.  Fields,  4  Leigh  (Va.)  648,  477 
Com.  v.  Fitzpatrick,  140  Mass.  455,  297 
Com.  v.  Flynn,  165  Mass.  153,  272,  420 
Com.  v.  Follansbee.  155  Mass.  274, 

410,  413 
Com.  v.  Ford,  111  Mass.  394, 

85,  289,  303 
Com.  v.  Foster,  114  Mass.  311,  485 
Com.  v.  Fox,  7  Gray  (Mass.)  585,  382 
Com.  v.  Galavan,  9  Allen  (Mass.) 

271,  157 

Com.  v.  Gaming  Instruments,  119 

Mass.  332,  535 


Com.  v.  Gauvin,  143  Mass.  134,  432 
Com.  v.  Gentry,  5  Pa.  D.  Rep. 

703,  206 
Com.  v.  Gerade,  145  Pa.  St.  289, 

193,  196,  198,  199,  200,  205 
Com.  v.  Getchell,  16  Pick. 

(Mass.)  452,  570 

Com.  v.  Gilbert,  165  Mass.  45,  267 

Com.  v.  Glover,  11  Mass.  395,  433 

Com.  v.  Goddard,  13  Mass.  455,  244 
Com.  v.  Goddard,  80  Mass.  402, 

324,  325 

Com.  v.  Goding,  3  Mete.  (Mass.) 

130,  531 

Com.  v.  Goldstein,  114  Mass.  272,  431 

Com.  v.  Goodall,  165  Mass.  588,  539 

Com.  v.  Goodwin,  14  Gray  55,  9 
Com.  v.  Gordon,  2  Brewst.  (Pa.) 

569,  235 

Com.  v.  Gorham,  99  Mass.  420,  302 
Com.  v.  Grady,  13  Bush  (Ky.) 

285,  504 

Com.  v.  Graves,  155  Mass.  163,  570 
Com.  v.  Gray  (Ky.,  1895),  30  S. 

W.  Rep.  1015,  394 

Com.  v.  Gray,  129  Mass.  474,  445 

Com.  v.  Green,  17  Mass.  515,  257 

Com.  v.  Green,  126  Pa.  St.  531,  239 

Com.  v.  Griffin,  110  Mass.  181,  233 

Com.  v.  Grose,  99  Mass.  423,  365 
Com.  v.  Hacket,  2  Allen  (Mass.) 

136,  121 
Com.  v.  Hagarman,  10  Allen 

(Mass.)  401,  177 
Com.  v.  Hagenlock,  140  Mass. 

125,  207 
Com.  v.  Haley,  13  Allen  (Mass.) 

587,  267 
Com.  v.  Hall,  4  Allen  (Mass.) 

305,  259,  488 

Com.  v.  Haney,  127  Mass.  455, 

40,  133,  141 

Com.  v.  Hanley,  140  Mass.  457,  82 
Com.  v.  Hardy,  2  Mass.  303,  96,  102 
Com.  v.  Harlow,  110  Mass.  411,  83,  84 

Com.  v.  Harman,  4  Pa.  St.  269,  165 
Com.  v.  Harmon,  2  Gray  (Mass.) 

289,  425 
Com.  v.  Harrington,  3  Pick. 

(Mass.)  26,  43 
Com.  v.  Harrington,  152  Mass. 

488,  298 

Com.  v.  Harris,  131  Mass.  336,  480 
Com.  v.  Harvev,  1  Gray  (Mass.) 

487,  154 

Com.  v.  Haughey,  3  Mete.  223,  504 
Com.  v.  Hayden,  163  Mass.  453, 

38,  429 

Com.  v.  Hayes,  145  Mass.  289,  234 


TAKI.K    OK    CASKS. 


XXXV 


[References  m 

Com.  v.  Hayward,  163  Mass.  15:5,  459 
Com.  v.  Hersey,  2  Allen  (Mass.) 

173,  278 

Com.  v.  Hill,  11  Cash. (Mass.)  137,  239 
Com.  v.  Hill,  14  Mass.  207,  253 

Com.  v.  Hill,  05  Mass.  137,  238 

Com.  v.  Hilliard,  2  Gray  (Mass.) 

294,  386 

Com.  v.  Hills,  10  Cush.  (Mass.) 

530,  61,  250 

Com.  v.  Hinds,  101  Mass.  209,  488 
Com.  v.  Hoffman,  121  Mass.  369,  245 
Com.  v.  Holmes,  127  Mass.  424, 

90   92   94 
Com.  v.  Holt,  121  Mass.  61,  ~446 

Com.  v.  Homer,  153  Mass.  343,  112 
Com.    v.    Hooper,  Thacher  C.  C. 

400,  541 

Com.  v.  Hopkins,  3  Mete.  (Mass.) 

460,  571 

Com.  v.  Hoskins   (Kv.,   1896),  35 

S.  W.  Rep.  284,  387 

Com.  v.  Hourigan,  89  Ky.  305,  273 
Com.  v.  Howe,  9  Gray  (Mass.) 

110,  171 

Com.  v.  Howe,  132  Mass.  250,  501,  502 
Com.  v.  Hoxey,  16  Mass.  385,  516 

Com.  v.  Hudson,  97  Mass.  565,  431 
Com.  v.  Hughes,  133  Mass.  496, 

571,  576 
Com.  v.  Hunton  (Mass.,  1897),  46 

N.  E.  Rep.  404,  550 

Com.  v.  Hutchinson,  10  Mass.  225,  254 
Com.  v.  Ingraham,  7  Gray  (Mass.) 

46,  299 

Com.  v.  Israel,  4  Leigh  (Va.)  675,  510 
Com.  v.  Jackson,  11  Bush    (Ky.) 

679,  462 

Cora.  v.  Jackson, 132  Mass.  16, 

108,  502,  503 
Com.  v.  Jeffries,  7  Allen  (Mass.) 

548,  501,  502,  506 

Com.  v.  Jones,  155  Mass.  170,  297 
Com.  v.  Kaas,  3  Brewst.  (Pa.)  422,  434 
Com.  v.  Kane,  108  Mass.  423,  58 

Com.  v.  Karpouski,  15  Pa.  Co.  Ct. 

Rep.  280,  506 

Com.  v.  Keck,  148  Pa.  St.  639,  323 
Com.  v.  Kendall,  113  Mass.  210, 

479,  480 
Com.   v.   Kennedy,   15  B.  Mon. 

(Ky.)531,  531 

Com.  v.  Kennev,  12  Met.  (Mass.) 

235,  154,  155 

Com.  v.   Keyes,  11  Gray  (Mass.) 

323,  182 

Com.  v.Kingsbury,  106  Mass.  223,  560 
Com.  v.  Kirby,  2  Cush.  (Mass.) 

577,  510 


■e  to  Pages.'] 

Com.  v.  Knapp,  9  Pick.  (Mass.) 

196,  37,  173,  175,  282,  283 

Com.  v.  Knapp,  10  Pick.  (Mass.) 

477,  334 

Com.  v.   Kreuger,  17  Pa.  Co.  Ct. 

Rep.  L81,  232 

Com.  v.  Ladd,  15  Muss.  526,  485,  495 
Com.  v.  Lahey,  14  Gray  (.Mass.) 

91,  444 

Com.  v.  Lain,  113  Mass.  45S,  456 

Com.  v.  Lannan,  13  Allen  (Mass.) 

563,  76 

Com.  v.  Lannan,  155  Mass.  168,  78 
C v.  Lawler,  12  Allen  (Mass.) 

585,  292 

Com.  v.  Leach,  160  Mass.  542, 

24,  367,  412,  413 
Com.v.  Lee,  43  Mass.  LOO,  293 

Com.  v.  Leonard,  140  Mass.  473, 

20,  101 
Com.  v.  Lindsey,  2  Ches.  Co.  Rep. 

Pa.  268,  309 

Com.  v.  Liquors,  115  Mass.  142,  21 

Com.  v.  Littlejohn,  15  Mass.  163, 

446,  462 
Com.  v.  Locke,  114  Mass.  208,  34 

Com.  v.  Lockhardt,  144  Mass.  132, 

539 
Com.  v.  Lowrey,  158  Mass.  18,  343 
Com.  v.  Luckis,  99  Mass.  431,  353 

Com.  v.  Luscomb,  130  Mass.  42,  538 
Com.  v.  Lyden,  113  Mass.  452,  272 
Com.  v.  Lynes,  142  Mass.  577,  254 

Com.  v.   Maclin,   3   Leigh  (Va.) 

809,  369 

Com.  v.  Manson,  4  Ashm.  31,  236 

Com.  v.  Marchand,  155  Mass.  496,  571 
Com.  v.  Marsh,  10  Pick.   (Mass.) 

57  86  87 

Com',  v.  Mason,  105  Mass.  163,  501 
Com.  v.  McCarthy,  119  Mass.  354, 

111 
Com.  v.  McComb,  157  Pa.  St.  611,  239 
Com.  v.  McCue.  82  Mass.  226,  58,  510 
Com.  v.  McDermott,   123  Mass. 

440,  155 

Com.  v.  McDonald,  110  Mass.  405, 

302, 477 
Com.  v.  McGorty,  114  Mass.  299,  362 
Com.  v.  McGruth,  140  Mass.  296,  459 
Com.  v.  McHale,  97  Pa.  St.  397,  516 
Com.    v.    McKenney,   9    Gray 

(Mass.)  114,  358 

Com.  v.  McKie,  1  Gray  (Mass.) 

61 ,  32 

Com.  v.  McLaughlin,  105  Mass. 

460,  370 

Com.  v.  McMahon,  145  Pa.  St.  413, 

1,  190,  341 


xxxvi 


TABLE    OF    CASES. 


[References  are  to  Pages.} 


Com.  v.  McManua,  143  Pa.  St.  64, 

337,  338, 

Com.  v.  McPike,  3  Cush.  (Mass.) 

181,  119, 

Com.  v.  Mead,  10  Allen  (Mass.) 

396, 
Com.  v.  Mead,  12  Gray  (Mass.) 
167, 

Mehan,  11  Gray  (Mass.) 


Merriam,  14  Pick.  (Mass. 
Merrill,  14  Gray  (Mass.) 


Com.  v. 

321, 
Com.  v. 

518, 
Com.  v. 

415, 
Com.  v.  Meserve,  154  Mass.  64, 
Com.  v.  Messinger,  1  Binn.  (Pa.) 

273 
Com. V.  Mika,  171  Pa.  St.  273, 
Com.  v.  Millard,  1  Mass.  6, 
Com.  v.  Miller,  3  Cush.  (Mass.) 

243, 
Com.  v.  Miller,  8  Gray  (Mass.) 

484, 
Com.  v.  Minor,  89  Ky.  555, 
Com.  v.  Moineham,  140  Mass.  463, 
Com.  v.  Montgomery,  11  Mete. 

(Mass.)  534,  357,  360, 

Com.  v.  Moore,  3  Pick.  (Mass:) 

194, 
Com.  v.  Moore,  166  Mass.  513, 

346, 
Com.  v.  Moore,  99  Pa.  St.  570,  502 
Com.  v.  Moore,  2  Leigh  (Va.)  701, 

356, 
Com.  v.  Morey,  1  Gray  (Mass.) 

461,  160, 

Com.  v.  Morgan,  107  Mass.  199, 

76,  302,  423, 
Com.  v.  Morgan,  159  Mass.  375, 
Com.  v.  Morihan,  4  Allen  (Mass.) 

585, 
Com.  v.  Morningstar,  12  Pa.  Co. 

Ct.  Rep.  34, 
Com.  v.  Morrell,  99  Mass.  542, 
Com.  v.  Morrill,  8  Cush.  (Mass.) 

571, 
Com.  v.  Morris,  1  Cush.  (Mass.) 

391,  444, 

Com.  v.  Morrow,  9  Phila.  583, 
Com.  v.  Mosier  135  Pa.  St.  221, 
Com.  v.  Mosier,  4  Barr.  (Pa.)  264, 
Com.  v.  Moulton,  9  Mass.  29, 
Com.  v.  Mudgett,  74  Pa.  St.  211, 
Com.  v.  Mullen,  97  Mass.  545,  84, 
Com.  v.  Murphy,  96  Ky.  26, 
Com.  v.  Murphy,  165  Mass.  66, 
Com.  v.  Murphy,  166  Mass.  171, 
Com.  v.  Murray,  135  Mass.  350, 
Com.  v.  Myers,  160  Mass.  530, 


Com.  v 

Nagle,  157  Mass.  554, 

105 

384 

Com.  v 

Nichols,  114  Mass.  285, 

76,  115,  304, 

444 

121 

Com.  v. 

Norcross,  9  Mass.  492,  446 

462 

Com.  v 

O'Brien,  12  Allen  (Mass.) 

27 

183, 

92 

,  93 

Com.  v. 

O'Brien,  119  Mass.  342, 

240 

98,  102, 

103 

Com.  v. 

O'Brien,  134  Mass.  198, 

407 

44 

Com.  v. 

O'Brien,  140  Pa.  St.  555, 

550 

) 

Com.  v. 

Parker,  2  Cush.  (Mass.) 

444 

212, 

527 

Com.  v. 

Parker,  9  Mete.  (Mass.) 

343 

263, 

459 

491 

Com.  v. 

Pease,  16  Mass.  91, 

518 

Com.  v. 

Pendleton,  4  Leigh  (Va.) 

357 

694, 

490 

129 

Com.  v. 

Peters,  12  Mete.  (Mass.) 

441 

397, 

245 

Com.  v. 

Phillips,  11  Pick.  (Mass.) 

181 

28, 

576 

Com.  v. 

Phillips,  14  S.  W.  Rep. 

576 

378, 

429 

259 

Com.  v. 

Piper,  120  Mass.  185,  161, 

285 

,  58 

Com.  v. 

Place,  153  Pa.  St.  314, 

427 

Com.  v. 

Plumbly,  2  Mete.  (Mass.) 

367 

413, 

571, 

573 

Com.  v. 

Pomeroy,  117  Mass.  143, 

597 

196, 

202 

Com.  v. 

Pope,  103  Mass.  440,     58, 

438 

349 

Com.  v. 

Powers,  116  Mass.  337, 

61 

504 

Com.  v. 

Pratt,  137  Mass.  98, 

49,  50,  73, 

351 

357 

Com.  v 

Pratt,  126  Mass.  462, 

303 

Com.  v 

Preece,  140  Mass.  276, 

174 

52,  160 

429 

Com.  v 

Price,  10  Gray  (Mass.) 

424 

472, 

90,  487, 

498 

64 

Com.  v 

Proster,  165  Mass.  38, 

538 

Com.  v 

Purdy,  146  Mass.  38, 

43 

525 

Com.  v. 

Quinn,  150  Mass.  401, 

430 

Com.  v. 

Randall,  4  Gray  (Mass.) 

43 

36, 

418 

61 

Com.v. 

Reynolds,  14  Gray  (Mass.) 

87, 

313,  314, 

512 

502 

Com.  v. 

Reynolds,  122  Mass.  392, 

165 

Com.v. 

Richards,  18Pick.(Mass.) 

446 

434, 

323, 

324 

574 

Com.  v. 

Ricker,  131  Mass.  581, 

187 

294 

Com.  v. 

Riggs,  14  Gray  (Mass.) 

164 

114, 

358, 

365 

354 

Com.  v. 

Riley,  2  Pick.  (Mass.) 

236 

172, 

571 

304 

Com.  v. 

Roark,  62  Mass.  210, 

51 

507 

Com.  v. 

Robbins,  3  Pick.  (Mass.) 

467 

63, 

152 

544 

Com.  v. 

Roberts,  108  Mass.  296, 

133 

513 

Com.  v. 

Robinson,  146  Mass.  571, 

172 

109, 

382 

TABLE    OF    CASES. 


xxxvu 


[References  at 

Com.  v.  Robinson,  165  Mass.  4L'f>, 

167,  235,  254 
Com.  v.  Rogers,  7  Mete.  (Mass.  | 

500,  His, -jiii 

Com.  v.  Rogers,  136  Mass.  158,  L02 
Com.  v.  Roosenell,  143  Mass.  32,  466 
Com.  v.  Rowell,  IK'.  Mass.  128,  42,538 
Com.  v.  Raddle,  158  Mass.  18,  343 
Com.  v.  Ruisseau,  L40  Mass.  363,  579 
Com.  v.  Russell,  156  Mass.  196,  486 
Com.  v.  Ryan,  155  Mass.  523,  346 

Com.  v.  Sacket,  22  Pick.  (Mass.) 

394,  104,  300 

Com.  v.  Samuel,  2  Pick.  (Mass.) 

103,  33,  34 

Com.  v.  Saulsburv,  152  Pa.  St.  554, 

514,  516,  517 
Com.  v.  Savory,  10  Cush.  (Mass.) 

535,  92 

Com.  v.  Sawtelle,  141  Mass.  140,  350 
Com.  v.  Schaffer,  178  Pa.  St.  409,  179 
Com.  v.   Schwartz,  92  Ky.  510, 

501,  505 
Com.  v.  Scott,  123  Mass.  222,  70 

Com.  v.  Scowdeil,  92  Kv.  120,  238,  240 
Com.  v.  Searle,  2Binn.  (Pa.)  367, 

486,  489 

Com.  v.  Shaw,  4  Cush.  (Mass.) 

593,  272,  300,  304 

Com.  v.  Shed,  1  Mass.  227,  514,  517 
Com.  v.  Shepherd,  6  Binney  (Pa.) 

283,  592,  593 

Com.  v.  Sheppard,  1  Allen  (Mass.) 

575,  347 

Com.  v.  Sliney,  126  Mass.  49,  157 

Com.  v.  Smith,  2  Gray  516,  250 

Com.  v.  Smith,  119  Mass.  305, 

163,  176 
Com.  v.  Smith,  163  Mass.  411,  294 
Com.  v.  Smith,  11  Allen  (Mass.) 

243,  525 

Com.  v.  Smith,  166  Mass.  370, 

23,  60,  535 
Com.  v.  Smith,  6  S.  &  R.  568, 

484,  492,  494 
Com.  v.  Snee,  145  Mass.  351,  296 

Com.  v.  Snell,  3  Mass.  82,  490 

Com.  v.  Snelling,  32  Mass.  337, 

425,  427 
Com.  v.  Snow,  111  Mass.  411,  297 

Com.  v.  Snowden,  1  Brew.  (Pa.) 

218,  512,  521 

Com.  v.  Sparks,  7  Allen  (Mass.) 

534,  235,  446 

Com.  v.  Spear,  143  Mass.  172,  539 

Com.  v.  Spencer,  2  Leigh  (Va.) 

751,  47,  491 

Com.  v.  Starr,  4  Allen   (Mass.) 

301,  295 


•e  to  PaycR.'] 

Com.  v.  Stearns,  10  Mete.  |  Mi 

256,  487, 

Com.  v.  Stebbins,  8  Gray  (Mass.) 

492,  '  :;•->:_'.  359, 

Com.  v.  Stevenson,  127  Mass.  111'., 

502, 
( lorn.  v.  Stevenson,  142  Mass.  466, 
Com.  v.  Straesser,  153  Pa.  St.  451, 
Com.  v.  Sturgeon  (Ky.,  1897),  37 

S.  \V.  Rep.  680, 
Com.  v.  Sturtivant,  117  Mass.  122, 
69,  109,  209,  372, 
Com.  v.  Sugland,  4  Gray  (Mass.) 

7, 
Com.  v.  Sullivan,  150  Mass.  315, 
Com.  v.  Surles,  165  Mass.  59, 
Com.  v.  Switzer,  134  Pa.  St.  383, 
Com.  v.  Taylor,  5  Cush.  (Mass.) 

605, 
Com.  v.  Taylor,  132  Mass.  261, 
Com.  v.  Thompson,  159  Mass.  56, 
130,  277,  412,  414, 

Com.  v.Thurlow,24Pick.  (Mass.) 
374,  34, 

Com.  v.  Thyng,  134  Mass.  191, 
Com.  v.  Tibbetts,  157  Mass.  519, 

60, 
Com.  v.  Tivnon,  8  Gray  (Mass.) 

375 
Com. 'v.  Tolliver,  119  Mass.  312, 

77, 
Com.  v.  Tracy,  5  Mete.  (Mass.) 

536, 
Com.  v.  Trefethen,  157  Mass.  180, 

145, 
Com.  v.  Trider,  143  Mass.  180, 
Com.  v.  Trimmer,  1  Mass.  47(i, 
Com.   v.   Tuckerman,  10  Gray 

(Mass.)  173,  112,  174,  184, 

Com.  v.  Turner,  4  Mete.  (Mass.) 

43, 
Com.  v.  Tuttle,  12  Cush.  (Mass.) 

502, 
Com.  v.  Twitchell,  1  Brew.  (Pa.) 

551,  146, 

Com.  v.  Udderzook,  76  Pa.  St.  340, 
Uhrig,  167  Mass.  420, 
VanTuyl,  1  Mete.  (Kv.) 

338, 
Vass,  3  Leigh  (Va.)  786, 
Vieth,  155  Mass.  442, 
Waite,  11  Allen  (Mass.) 
538, 
Walden,  3  Cush.  (Mass.) 
367, 
Walker,  13  Allen  (Mass.) 


Com. 

v. 

Com. 

v. 

1, 

Com. 

v. 

Com. 

v. 

Com. 

V. 

264 

Com. 

V. 

558 

Com. 

V. 

570 

Com. 

V. 

Com. 

V. 

Walker,  163  Mass.  226, 
Wallace,  114  Pa.  St.  405, 


497 

364 

505 
407 
386 

542 

382 

466 

302 

409 

63 

160 
374 

373 

42 

290 

413 

439 

145 

511 

412 
303 
354 

347 

487 

20 

285 
377 
428 

507 
141 
537 

549 

368 

155 

56 

505 


XXXV111 


TABLE    OF    CASES. 


[Beferences  are  to  Pages."] 


Coin.  v.  Ward,  157  Mass.  482,  265,  266 
Coin.  v.  Warren,  6  Mass.  72,  490 

Com.  v.  Warren,  94  Kv.  615,  503 

Com.  v.  Warren,  143  Mass.  568,  44 
Com.  v.  Webster,  5  Cash.  (Mass.) 

295, 
96,  99,  105,  188,  189,  282,  305,  375,  377 
Com.  v.  Welch,  142  Mass.  473,  58 

Com.  v.  Wellington,  7  Allen 

(Mass.)  299,    •  429 

Com.  v.  Wells,  110  Pa.  St.  463,  531 
Com.  v.  Wentz,  1  Ashmead  (Pa.) 

269,  593 

Com.  v.  Werntz,  161  Pa.  St.  591, 

342  393 
Com.  v.  Wesley,  166  Mass.  248,  '  430 
Com.  v.  Wheeler,  162  Mass.  429,  29 
Com.  v.  White,  5  Mass.  261,  483 

Com.  v.  White,  145  Mass.  392,  487,  488 
Com.  v.  White,  147  Mass.  76,  241 

Com.  v.  Whitman,  121  Mass.  361, 

69,  354 
Com.  v.  Whittaker,  131  Mass.  224, 

407,  455 
Com.  v.  Willard,  22  Pick.  (Mass.) 

476,  85 

Com.  v.  Williams,  2Cush.  (Mass.) 

582,  440 

Com.  v.  Williams,  13  Mass.  501,  310 
Com.  v.  Wilson,  1  Gray  (Mass.) 

337  205 

Com.  v.  Wilson,  2  Gray  (Mass.)  70,  484 
Com.  v.Wood,  10  Gray  (Mass.)  477,  38 
Com.  v.Wood,  11  Gray  (Mass.)  85,  410 
Com.  v.  Worcester,  141  Mass.  58,  83 
Com.  v.  Wright  (Ky.),  27  S.  W. 

Rep.  815,  453 

Com.  v.  York,  9  Mete.  (Mass.)  93, 

380,  381 
Compton  v.  State,  110  Ala.  24,  380 
Compton  v.  Wilder,  40  Ohio  St. 

130,  316 

Comstock  v.  State,  14  Neb.  205, 

84,  155,  476 
Conkwright  v.  State,  35  111.  204,  360 
Conley  v.  Com.  (Ky.,  1897),  32 

S.  W.  Rep.  285,  206 

Conley  v.  Meeker,  85  N.  Y.  618,  291 
Conn  v.  People,  116  111.  458,  418 

Conner  v.  State,  23  Tex.  App.  378, 

54,  321 
Conner  v.  People,  18  Colo.  373,  297 
Conner  v.  State,  34  Tex.  659,  182 

Conners  v.  State,  47  Wis.  523,  466 

Connors  v.  People,  50  N.  Y.  240,  76,  81 
Conrad  v.  State,  132  Ind.  254, 

17,  190,  283,  291 
Conrad  v.  State,  144  Ind.  290,  282 

Consaul  v.  Sheldon,  35  Neb.  247,   264 


Conway  v.  State,  118  Ind.  482, 

88,  93,  152,  154,  290,  379 
Conyers  v.  State,  50  Ga.  103,  34,  535 
Cook,  In  re,  49  Fed.  Rep.  833,  554,  558 
Cook  v.  Johnston,  58  Mich.  437,  432 
Cook  v.  State,  11  Ga.  53,  444 

Cook  v.  State,  30  Tex.  App.  607,  277 
Cooley  v.  Foltz,  85  Mich.  47,  226 

Coon  v.  People,  99  111.  368, 

261,  262,  263 
Cooper  v.  State,  63  Ala.  80,  364 

Cooper  v.  State,  88  Ala.  107,  438 

Cooper  v.  State,  90  Ala.  641,  296 

Cooper  v.  State,  91  Ga.  362,  583 

Cooper  v.  State,  47  Ind.  61,  245 

Cope  v.  Cope,  1  M.  &  R.  269,  592 

Copeland  v.  State  (Tex.,  1897), 40 

S.  W.  Rep.  589,  590 

Copeland  v.  State,  38  S.  W.  Rep. 

1 89  533 

Corbett  v.  Gibson,  16  Blatchf.  C. 

C.  334,  311 

Cordova  v.  State,  6  Tex.  App.  207,  156 
Cornelius  v.  Com.,   15    B.   Mon. 

(Ky.)  539,  274 

Cornell  v.  Green,  10  S.  &  R.  (Pa.) 

14,  324 

Cornwell  v.  State,  M.  &  Y.(Tenn.) 

147,  120 

Corson  v.  Corson,  44  N.  H.  587,  593 
Cossart  v.  State,  14  Ark.  538,  520 

Costello  v.  State,  21  S.  W.  Rep. 

360,  435 

Cotton  v.  State,  87  Ala.  103, 

84,  170,  294 
Cotton  v.  State  (Miss.),  17  So. 

Rep.  372,  108 

Cottrell,  Ex  parte,  13  Neb.  193,  588 
Couch  v.  State,  28  Ga.  367,  485,  489 
Counselman  v.  Hitchcock,  142 

U.  S.  547,  73,  515 

Course  v.  Stead,  4  Dall.  22,  568 

Courtney  v.  State,  5  Ind.  App. 

356,  534 

Coveney  v.   Tannahill,   1   Hill 

(N.  Y.)  220,  222 

Cover  v.  Com.  (Pa.),  6  Cent.  Rep. 

585,  152 

Cowley  v.  People,  83  N.  Y.  464,  62 
Cowley  v.  State,  10  Lea  (Tenn.) 

282,  417,  418 

Cox  v.  Com.,  125  Pa.  St.  94,  91 

Cox  v.Hill,  3  Ohio  411,  218 

Cox  v.  People,  80  N.  Y.  500,  163,  175 
Cox  v.  State,  64  Ga.  374,  124 

Cox  v.  State,  95  Ga.  502,  553 

Cox  v.  State,  8  Tex.  App.  254,  551 
Cox  v.  State  (Tex.,  1897).  36  S.W. 

Rep.  435,  320 


TABLE    OF    CASES. 


X  X  X  1  x 


[References  are  to   Pages. ] 


Coxwell  v.  State,  66  Ga.  300,  397 

Coyle  v.  Com.,  100  Pa.  St.  573,  199 
Crandall  v.  People,  2  Lans.(N.Y.) 

309,  83 

Crane  v.  State,  94  Tenn.  86,  461,  462 
Crane  v.  State,  111  Ala.  45,  341 

Crass  v.  State,  30  Tex.  App.  480,  43 
Crass  v.  State,  31  Tex.  Cr.  Rep. 

312,  113 

Crawford  v.  State  (Ala.,  1897),  21 

So.  Rep.  214,  101,  297,  362,  376 

Crawford  v.  State,  90  Ga.  701 ,  421 

Crawford  v.  State,  7  Baxt.  (Tenn.) 

41,  597 

Crawford  v.  State,  4  Coldw.(Tenn.) 

— ,  I'.io 

Crawford  v.  State,  2  Yerg.  (Tenn.) 

60,  242 

Crawford  v.  State  (Tex.,  1897),  34 

S.  W.  Rep.  927,  93 

Crawford  v.  State,  21  Tex.  App. 

454,  417 

Creed  v.  People,  24  Tnd.  151,  37,  38 
Creek  v.  State,  24  Ind.  151,  37,  38 

Creisrhton  v.  Com.,  83  Kv.  142,  510 
Creswell  v.  State,  14 Tex.  App.  1,  376 
Crews  v.  People,  120  111.  317,  329 

Crews  v.  State,  34  Tex.  Cr.  Rep. 

533,  109,  382 

Crittenden  v.  Com.,  82  Kv.  164,  273 
Croghan  v.  State,  22  Wis.'  444,  457 
Crookham  v.  State,  5  V"  Ya.  510, 

119,  396 
Croom  v.  State,  90  Ga.  430,  388 

Crosby  v.  People,  137  111.  430,  552 

Cross  v.   Cross,  3  Paige  (N.  Y.) 

139,  591,  593 

Cross  v.  People.  47  111.  152,  484 

Crosswell  v.  State,  13  Mich.  427,  477 
Crow  v.  Jordan.  49  Ohio  St.  655,  589 
Crow  v.  State,  6  Tex.  334,  178 

Croy  v.  State,  32  Ind.  384,  370 

Crozierv.  People,  1  Park.  Cr.  Rep. 

(N.  Y.)  453,  454 

Crumbley  v.  State,  61  Ga.  582,  417 
Crump  v.  Com.  (Ky.,  1893),  20  S. 

W.  Rep.  320,  130,  293 

Crumpton  v.  State,  52  Ark.  273, 

274,  306 
Crumpton  v.   United  States,  138 

U.  S.  361,  328 

Crutchfield  v.  State,  7  Tex.  App. 

65,  86 

Crver  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  203,  369 

Cubbison  v.  McCrearv,  2  W.  &  S. 

(Pa.)  262,  250 

Culver  v.  Marks,  122  Ind.  554,  56 

Culver  v.  Scott,  53  Minn.  360,  268 


Cummins  v.  People,  42  Mich.  142,  148 

Cunningham  v.  State,  97 Ga.  214,  278 
Curby  v.  Territory  (Ariz.,  1896), 

42  Par.  Rep.  953,  471 

Curran  v.  People, 35  111.  App.  275,  597 
Cutsinger  v.  Com.,  7  Bush  (Kv.) 

392,  '  543 
Cutter  v.  State,  7  Vroom,  36  N.  J. 

L.  125,  517 

D 

Daeey  v.  State,  116  111.  555,  195,  381 
Daily  v.  State,  51  Ohio  St.  343,  370 
Daily  v.  N.  Y.,  etc.,  Co.,  32  Conn. 

356,  L34 

Dale  v.  State,  88  Ga.  552,  190,  584 

Dale  v.  State,  10  Yerg.   (Tenn.) 

551,  193 

Daly  v.  Multnomah  Co.,  14  Ore. 

20  309 
Danforth  v.  State,  75  Ga.  614,  337 
Daniels  v.  People,  6  Mich.  381,  456 
Daniel  v.  State,  65  Ga.  199,  179 
Daniels  v.  State,  78  Ga.  98,  435 
Dantz  v.  State,  87  Ind.  398,  177 
Darby  v.  State,  92  Ala.  9,  141 
Daughdrill  v.  State  (Ala.,  1897), 

21  So.  Rep.  378,  133 
Dave  v.  State,  22  Ala.  23,  102 
Davenport  v.  State,  112  Ala.  49,  54  I 
Davidson  v.  State,  99  Ind.  366,  245 
Davidson  v.  State,  135  Ind.  254,  386 
Davidson  v.  State,  22  Tex.  App. 

372,  525 

Davie's  Case,  1  Leach  323,  90 

Davis  v.  Com.,  95  Kv.  19,  291 

Davis  v.  Com.,  39  Pa.  St.  421,  369 

Davis  v.  Com.,  122  Mass.  324,  560 

Davis  v.  People,  1  Park  Cr.  Rep. 

447,  441 

Davis  v.  People,  114  111.  86,  21 

Davis  v.  State,  17  Ala.  354,  320,  324 
Davis  v.  State    (Ark.,    1897),   39 

S.  W.  Rep.  356,  70,  456,  478 

Davis  v.  State,  45  Ark.  359,  546 

Davis  v.  State,  10  Ga.  101,  100 

Davis  v.  State,  20  Ga.  071,  177 

Davis  v.  State,  76  Ga.  17,  441 

Davis  v.  State    (Ga.),   25   S.   E. 

Rep.  921, 
Davis  v.  State,  50  Miss.  86,       360.  361 
Davis  v.  State,  31  Neb.  247,      254,  467 
Davis   v.    State    (Neb.,    18971,    70 

N.  W.  Rep.  984,  181,305,344 

Davis  v.  State,  25  Ohio  St.  369,  209 
Davis  v.  State,  8  Tex.  App.  510,  367 
Davis  v.  State,  22  Tex.  App.  45,  421 
Davis  v.  State,  23  Tex.  App.  210, 

44,  356 


xl 


TABLE    OF    CASES. 


[References  are  to  Pages.~\ 


Davis  v.  State,  32  Tex.  Cr.  Rep. 

377,  109 

Davis  v.  State   (Tex.,   1897),   39 

S.  W.  Rep.  296,  484 

Davis  v.  United  States,  156  U.  S. 

373,  305 

Davis-  v.  United  States,  160  U.  S. 

469,  196 

Davison  v.  Cruse,  47  Neb.  829, 

589,  596,  597,  598 
Davison  v.  People,  90  111.  221,  272,  381 
Dawson  v.  State,  32  Tex.  Cr.  Rep. 

535,  109,  439,  441 

Dawson  v.  State  (Tex.),  40  S.  W. 

Rep.  731,  47 

Day  v.  State,  63  Ga.  667,  437 

Day  v.  State,  21  Tex.  App.  213,  32 
Day  v.  State,  27  Tex.  App.  143,  88 
Dean  v.  Com.,32Gratt.  (Va.)  912,  376 
Dean  v.  State,  89  Ala.  46,  417 

Dean  v.  State,  98  Ala.  71,  543 

Dean  v.  State,  105  Ala.  21,  400 

Dean  v.  State,  39  111.  App.  390,  591 
Dean  v.  State,  29  In d.  483,  593 

Dean  v.  State,  130  Ind.  237,  340 

Deathridge    v.    State,     1     Sneed 

(Tenn.)  75,  173 

DeFord  v.  Painter,  3  Okl.  80,  264 

DeGroat  v.  People,  39  Mich.  124,  456 
Dellaven  v. State,  2  Ind.  App.  376,  534 
Dejarnette  v.   Corn.,  75  Va.  867, 

200,  204 
Delaney  v.  People,  10  Mich.  241,  457 
Delk  v.  State  (Ga.,  1897),  27  S.E. 

Rep.  152,  327 

Dennett  v.    Kneeland,   6   Maine 

460,  599 

Dennis  v.  State,  103  Ind.  142,  582 

Dennison  v.  Page,  29  Pa.  St.  420,  593 
Densmore  v.  State,  67  Ind.  306,  17 
Denson  v.  State  (Tex.,  1896),  35 

S.  W.  Rep.  150,  394 

Denton  v.  State,  77  Md.  527,  350 

Devere  v.  State,  5  Ohio  Cr.  Ct. 

Rep.  509,  487,  490 

Devine,  Ex  parte  (Miss.,  1897),  22 

So.  Rep.  3,  561 

Devoto  v.  Com.,  3  Mete.  (Kv.)  417,  111 
Devries  v.  Phillips,  63  N.  Car.  53,  304 
Dibble  v.  State,  48  Ind.  470,  588 

Diekerson  v.  State,  48  Wis.  288,  165 
Dickey  v.  State,  68  Ala.  508,  533 

Dickey  v.  State,  21  Tex.  App.  430,  76 
Dickson  v.  State,  39  Ohio  St.  73,  389 
Dickson   v.    State,  34    Tex.    Cr. 

Rep.  1,  424 

Dickson  v.  Waldron,  135  Ind.  507,  251 
Dierberger  v.  State,  90  Mo.  369,  348 
Diffey  v.  State,  86  Ala.  66,  543 


Digby  v.  People,  113  111.  123,  132,  133 
Dill  v.  State,  1  Tex.  App.  278,  235 
Dill  v.  State,  6  Tex.  App.  113,  4'_'<) 

Dillard  v.  State,  58  Miss.  368,  277,  398 
Dillin  v.  People,  8  Mich.  357,  400 

Dillingham  v.   State,   5  Ohio  St. 

280,  503 

Dillingham  v.  State  (Tex.,  1896), 

32  S.  W.  Rep.  771,  544,546 

Dingman  v.  State,  48  Wis.  485,  329 
Dinkey  v.  Com.,  17  Pa,  St.  126,  44* 
Disharoon  v.  State,  95  Ga.  351,  448 
District  v.  Ames,  107  U.  S.  519,  251 
Dixon  v.  People,  18  Mich. 84,  231,  236 
Dixon  v.  State,  13  Fla.  636,  391 

Dixon  v.  State,  86  Ga.  754,  288 

Dobson  v.  Cothron,  34  S.  Car. 

518,  50 

Dobson  v.  State,  46  Neb.  250,  360 

Dock's  Case,  21  Gratt.  (Va.)  909,  386 
Dodson  v.  State,  86  Ala.  60,  182 

Doe  v.  Harvev,  8  Bing.  239,  54 

Doe  v.  Rilev,  28  Ala.  164,  514 

Dolan  v.  State,  40  Ark.  454,  321,  322 
Doles  v.  State,  97  Ind.  555,  138 

Dominick  v.  State,  81  Ga.  715,  584 
Done  v.  People,  5  Park  Cr.  Rep. 

364,  173 

Donnellan  v.  Com.,  7  Bush  (Ky.) 

676,  381 

Donnelly  v.  County,  7  Iowa  419,  310 
Donoghoe  v.  People,  6  Park  Cr. 

Rep.  120,  95 

Donohoe  v.  State,  59  Ark.  375,  505 
Dooley  v.  State,  89  Ala.  90,  544 

Doo  Woon,  In  re,  18  Fed.  Rep. 

898,  557 

Dorgan  v.  State,  72  Ala.  173,  587 

Dorman  v.  State,  56  Ind.  454,  28 

Dorsey  v.  State,  110  Ala.  38, 

59,  365,  501 
Dougherty  v.  People,  118  111.  160, 

29,  46 
Douglass  v.  State,  33  S.  W.  Rep. 

228,  293 

Dove  v.  State,  3  Heisk.  (Tenn.) 

348,  196,  198,  201 

Dow  v.  State,  31  Tex.  Cr.  Rep. 

278,  328 

Downey  v.  State,  110  Ala.  99,  533 

Dovle  v.  State  (Fla.),  22  So.  Rep. 

272,  341 

Dovle  v.  State,  77  Ga.  513,  420 

Doyle  v.  State,  147  111.  394,  341 

Drake  v.  State,  110  Ala.  9,  391,  393 
Drake  v.  State,  75  Ga.  413,  60 

Drake  v.  State,  25  Tex.  App.  293,  142 
Drew  v.  State,  124  Ind.  9,  81,  103 

Drinkall  v.  Spiegel,  68Conn.441,    557 


TABLE    OF    CASKS. 


Xli 


[References  are  to  Pages.'] 


Driscoll  v.  People,  47  Mich.  413, 

L19,  L21,  302 
Drowne  v.  Stimpson,  2  Mass.  441,  599 
Drumwrighl  v.  State,  29  Ga.  430,  157 
Duck  v.  State,  17  I  ml.  210,  598 

Dndney  v.  State,  22  Ark.  251,  534 
Duffinv.  People,  107  111.  113,  64,  491 
Duffy  v.  People,  26  N.  Y.  588, 

337,  338,  343 
Duffy  v.  People,  5  Park  Cr.  Rep. 

321,  173 

Dugan,  In  re,  2  Lowell  C.  C.  367,  562 
Dugan  v.   Mahoney,   11  Allen 

(Mass.)  572,  267 

Duke  v.  Asbee,  11  Ired.  (N.  Car.) 

112,  516 

Duke  v.  State,  19  Tex.  App.  14,  425 
Dukehart  v.  Coughnian,  36  Neb. 

412  588 

Dukes  v.  State,  11  Ind.  557,  124,  387 
Dunn's  Case,  91  Va.  718.  245 

Dumas  v.  State,  62  Ga.  58,  46,  131 
Dumas  v.  State,  63  Ga.  600,  81 

Dunbar  v.  United  States,  156  U.  S. 

85,  54 

Duncan  v.  State,  29  Fla.  439,  46 

Duncan  v.  State,  97  Ga.  180,  293 

Duncan  v.  State,  49  Miss.  331,  367 

Duncan  v.  State,  7  Humph.  (Tenn.) 

148,  510 

Dunlopv.  United  States,  165  U.  S. 

486  27,  536,  537 

Dunn'  v.  People,  109  111.  635,  20 

Dunn  v.  People,  29  N.  Y.  523,  410 

Dunn  v.  State,  2  Ark.  229,  113 

Dunn  v.  State,  70  Ind.  47,  246 

Dupree  v.  State,  33  Ala.  380,  323,  388 
Durham's  Case,  2  Leach  C.  L.  538,  90 
Duttenhofer  v.  State,  34  Ohio  St. 

91,  80,221 

Duvall  v.  State,  63  Ala.  12,  359 

D  wight  v.  Cutting,  91  Hun  38,  269 
Dwyer  v.  Rippetoe,  72  Tex.  520,  326 
Dye  v.  State,  130  Ind.  87,  157 

E 

Earll  v.  People,  73  111.  329,  90 

Early  v.  Com.,  86  Va.  921,  169,  174 
Earp  v.  State,  55  Ga.  136,  176 

Easdale  v.  Reynolds,  143  Mass. 

126,  597 

Easley  v.  Com.  (Pa.,  1887),  11  Atl. 

Rep.  220,  592 

Easterwood  v.  State,  34  Tex.  Cr. 

Rep.  400,  385 

Eastman  v.  Crosby,  90  Mass.  206,  568 
Eastwood  v.  People,  3  Park.  Cr. 

Rep.  25,  283 


Eberhardt  v.  State,  47  Ga.  598, 

162,  477, 478 
Echols  v.  State,  81  Ga.  696,  9 

Eckels  v.  State,  20  Ohio  St.  508,  353 
Edgington  v.  I'nited  States,  164 

I  .  s.  361,  100 

Edington  v.  M.  L.  Ins.  Co.,  67 

N.  V.  IS.",,  226 

Edmonds  v.  State,  70  Ala.  8,  353 

Edmonds  v.  State,  34  Ark. 720,  372,303 
Edmondson  v.  State,  43  Tex.  230,  310 
Edwards  v.  Com.,  78  Va.  39,  573 

Edwards  v.  State,  29  Tex.  App. 

452,  354 

Edwards  v.  State  (Ala.,  1897),  22 

So.  Rep.  364,  367 

Egbert  v.  Greenwich,  44  Mich. 

245,  593 

Eggler  v.  People,  56  N.  Y.  642, 

373   388 
Ehrisman  v.  Scott  (Ind.,  1893),  32 

N.  E.  Rep.  867,  269 

Eiland  v.  State,  52  Ala.  322,  388,  389 
Eldridge  v.  State,  27  Fla.  162, 

305,  306,  425 
Elev  v.  State  (Tex.,  1890),  13 

S.  W.  Rep.  998,  4:!!) 

Ellerbe,  In  re,  13  Fed.  Rep.  530,  278 
Elliott  v.  State,  34  Neb.  48,  79 

Ellis  v.  State,  25  Fla.  702,  468,  475 
Ellis  v.  State,  65  Miss.  44,  161 

Ellis  v.  State,  30  Tex.  App.  601,  34 
Ellis  v.  State,  33  Tex.  Cr.  R.  86,  10,  202 
Elmore  v.  State,  98  Ala.  12,  148,  150 
Elsey  v.  State,  47  Ark.  572,  485 

Eisner  v.  State,  22  Tex.  App.  687,  358 
Elting  v.  United  States,  27  Ct.  CI. 

158,  311 

Emerson  v.  State,  43  Ark.  372,  246 
Emery  v.  State,  92  Wis.  146,  166 

Emmons  v.  Barton,  109  Cal.  662,  233 
Endaily  v.  State,  39  Ark.  278,  366 

England  v.  State,  89  Ala.  76, 

301,  434,  437 
Ennisv.  State,  3  Greene (Iowa)67,  346 
Enquirer  v.  Johnston,  72  Fed. Rep. 

443,  424 

Eppsv.  State,  19  Ga.  102,  101,  264,  280 
Epps  v.  State,  102  Ind.  539, 

8,  51,  372,  378,  379 
Errington's  Case,  2  Lew.  Cr. 

Cases  148,  131 

Erwin  v.  State,  29  Ohio  St.  186,  381 
Erwin  v.  State,  10  Tex.  App.  700,  207 
Eskridge  v.  State,  25  Ala.  30,  171 

Espalla  v.  State,  108  Ala.  38,  489 

Etress  v.  State,  88  Ala.  191,  543 

Ettinger  v.  Com.,  98  Pa.  St.  338, 

154,  156,  383 


xlii 


TABLE    OF    CASES. 


[References  are  to  Pages.'] 


Evans  v.  State,  109  Ala.  11,  286 

Evans  v.  State,  58  Ark.  47,  121,  138 
Evans  v.  State,  17  Fla.  192,  29,  46 

Evans  v.  State,  67  Ind.  68,  584 

Evans  v.  State  (Tex.,  1897),  34  S. 

W.  Rep.  285,  259 

Everage  v.  State  (Ala.,  1897),  21 

So.  Rep.  404,  552 

Everett  v.  State,  33  Fla.  661,  231 

Everett  v.  State,  62  Ga.  65,  373,  392 
Everett  v.  State,  30  Tex.  App.  682,  220 
Evers  v.  State,  31  Tex.  Cr.  Rep. 

318,  386 

Ewing  v.  Bailey,  36  111.  191,  251 

Ezell  v.  State,  103  Ala.  8,  376 


F 


Fager  v.  State,  22  Neb.  332,  474 

Fallin  v.  State,  83  Ala.  5,  297 

Fantonv.  State,  69  N.  W.  Rep. 

(Neb.)  953,  17,331 

Farez,  In  re,  7  Blatch.  C.  C.  345, 

557, 562 
Farlev  v.  State,  57  Ind.  331,  244 

Farley  v.  State,  127  Ind.  347, 

24,  25,  436 
Farmer  v.  State,  21  Tex.  App. 

423,  370 

Farrall  v.  State,  32  Ala.  557,  34 

Farrell  v.  State,  103  111.  17,  145 

Farrell  v.  State,  54  N.  J.  L.  416, 

466,  467 
Farris  v.  People,  129  111.  521,  113 

Fassinow  v.  State,  89  Ind.  235,  77 

Faulk  v.  State,  52  Ala.  415,  245 

Faulkner  v.  Territory,  6  N.  Mex. 

464,  329 

Faust  v.  United  States,  163  U.  S. 

452,  44,  276,  347 

Faustrev.  Com.,  92  Ky.  34,  461 

Fawcett  v.  Linthecum,  7  Ohio  Cir. 

Ct.  Rep.  141,  313 

Fay  v.  Com.,  28  Gratt.  (Va.)  912, 

366,  505 
Feeney  v.  Railroad,  116  N.  Y.  375,  226 
Fein  v.  Covenant,  60  111.  App.  274,  295 
Felder  v.  State,  23  Tex.  App.  477, 

70  139  395 
Felker  v.  State,  54  Ark.  489, '  '  341 
Felsenthal  v.  People,  30  Tex.  App. 

675,  98 

Fenlason  v.  State,  78  Maine  495,     185 
Fenlon  v.  Dempsev,  21  Abb.  N. 

Cases  291,  312 

Ferguson  v.  McBean,  91  Cal.  63,     219 
Ferguson  v.  State.  71  Miss.  805, 

452,  455 


Ferguson  v.  State,  6  Tex.  App.  504, 

419 
Ferguson  v.  State,  31  Tex.  Cr.  Rep. 

93,  172 

Ferrill  v.  Com.  (Ky.,  1894),  23  S.  W. 

Rep.  344,  388 

Field  v.  Com.,  89  Va.  690,  580,  583 
Field  v.  State,  24  Tex.  App.  422,  442 
Fields  v.  State,  47  Ala.  603,  100,  386 
Fife  v.  Com.,  29  Pa.  St.  429,  160 

Files  v.  State  (Tex.,  1896),  36  S. 

W.  Rep.  93,  355 

Finch  v.  State,  81  Ala.  41, 

171,  375,  397 
Findley  v.  State,  5  Blackf.  576,  9 

Finley,  Ex  parte,  66  Cal.  262,  495 

Finn  v.  Com.,  5  Rand.  701,  321 

Finnegan  v.  Dugan,  14  Allen 

(Mass.)  197,  589 

Fisher  v.  State,  77  Ind.  42,  399 

Fisher  v.  State,  2  Ind.  App.  365,  534 
Fisher  v.  State,  30  Tex.  App.  502,  198 
Fitzgerald  v.  State,  12  Ga.  213,  542 
Fitzgerald  v.  State,  11  Neb.  577,  131 
Fitzpatrick  v.  Com.,  81  Ky.  357,  105 
Fitzpatrick  v.  Daily  States  Pub. 

Co.,  48  La.  An.  1116,  424 

Fitzpatrick  v.  State  (Tex.,  1897), 

38  S.  W.  Rep.  806,  262 

Fizell  v.  State,  25  Wis.  364,  467 

Flanagan  v.  People,  52  N.  Y.  467,  193 
Flanagan  v.  State,  64  Ga.  52,  125 

Flanigan  v.  State,  25  Ark.  92,  236 

Fleener  v.  State,  58  Ark.  98, 

348,  349,  351 
Fleming  v.  State,  136  Ind.  149,  190 
Fletcher  v.  People,  117  111.  184, 

583,  584,  585 
Fletcher  v.  State,  12  Ark.  169,  178 
Fletcher  v.  State,  85  Ga.  666,  190 

Fletcher  v.  State,  90  Ga.  468,  17,  18 
Fletcher  v.  State,  49  Ind.  124, 

74,  81,  82 
Flint  v.  Kennedy,  33  Fed.  Rep. 

820,  269 

Flood  v.  Mitchell,  68  N.  Y.  570,  267 
Florez  v.  State,  11  Tex.  App.  102,  514 
Floyd  v.  State,  79  Ala.  39,  510 

Floyd  v.  State,  82  Ala.  16,  296 

Flvnn  v.  State,  43  Ark.  289,  126 

Folden  v.  State,  13  Neb.  328,  489 

Fooks  v.  State,  65  Iowa  196,  505 

Foote  v.  People,  17  Hun  (N.  Y.) 

218,  507 

Forbes  v.  Willard,  37  How.  Pr. 

193,  304 

Ford  v.  State,  71  Ala.  385, 

198,  297,  430,  552 
Ford  v.  State,  91  Ga.  162,  580 


TABLE    OF    CASES. 


xliii 


[References  are  to   Pages.] 


Ford  v.  State,  112  Ind.  373,  297 

Ford  v.  State,  7  Ind.  App.  567,  245 
Ford  v.  State  (Miss.),  19  So.  Rep. 

665,  196,  197 

Ford  v.  State  (Miss.,  1897),  21  So. 

Rep.  524,  161,  167,  176 

Forehand  v.  State,  51  Ark.  553, 

9gQ    og  1 

Forehand  v.  State.  53  Ark.  46,  '  28 
Fort  v.  State,  52  Ark.  180,  434 

Foster  v.  Dickerson,  64  Vt.  233,  289 
Foster  v.  Nelson,  2  Peters  253,  568 
Foster  v.  People,  18  .Mich.  265,  222 
Foster  v.  State,  39  Ala.  229,  245 

Foster  v.  State,  70  Miss.  755,  283 

Foster  v.  State,  8  Tex.  App.  248,  124 
Foster  v.  State,  32  Tex.  Cr.Rep.39,  526 
Fountain  v.  Young,  6  Esp.  115,  217 
Fowler,  In  re,  4  Fed.  Rep.  303,  565 
Fowler  v.  State,  100  Ala.  265,  341 

Fox  v.  People,  95  111.  71,  149,  485,  486 
Fox  v.  State,  3  Tex.  App.  329,  447 
Foxcroft's  Case,  1  Rolle  Abr.  359,  591 
Francis  v.  Rosa,  151  Mass.  532,  594 
Francis  v.  State,  7  Tex.  App.  591,  487 
Franco  v.  State,  42  Tex.  276,  440 

Frank  v.  State,  39  Miss.  705,  435,  439 
Frank  v.  State,  94  Wis.  211,  68  N. 

\V.  Rep.  657,  76 

Franklin  v.  Com.,  92  Kv.  612,  384 
Franklin  v.  State,  29  Ala.  14,  386 

Franklin  v.  State,  69  Ga.  36,  62.  154 
Franklin  v.  State  (Tex.,  1897),  39 

S.  W.  Rep.  680,  362,  363 

Fraser  v.  State,  55  Ga.  325,  385 

Frazier  v.  State,  56  Ark.  242,  45,  471 
Frazier  v.  State,  135  Ind.  38, 

109,  115,  439 
French  v.  State,  12  Ind.  670,  188 

French  v.  Ware,  65  Vt.  338,  234 

Friblv  v.  State,  42  Ohio  St.  205,  519 
Friedman  v.  R.  R.  Co.,  7  Phila. 

203,  134 

Friery  v.  People,  54  Barb.  (N.  Y.) 

319,  209 

Frisby  v.  State,  26  Tex.  App.  180,  424 
Frizzell  v.  State,  30  Tex.  App.  42, 

60,  392 
Frosh  v.  State,  11  Tex.  App.  280,  178 
Fry  v.  Com,  82  Va.  334,  479 

Frv  v.  State,  96  Tenn.  467,  104 

Fu'lcher  v.  State,  28  Tex.  App.  465, 

130,  133,  154,  156 
Fuller  v.  State,  12  Ohio  St,  433,  21 
Fuller  v.  State,  30  Tex.  App.  559,  295 
Fulmer  v.  Com.,  97  Pa.  St.  503,  365 
Fulton  v.  State,  13  Ark.  168,  366 

Fnnderberg  v.  State  (Tex.,  1896), 

34  S.  W.  Rep.  613,  361 


Funderburk  v.  State  (Miss.,  1897), 

21  So.  Rep.  658,  367 

Furst  v.  State,  31  Neb.  403,  182 

Futch  v.  State,  90  Ga.  472,  45 


G 


Gaddis  v.  State,  91  Ga.  148,  580 

Gahagan  v.  People,  1  Park  Cr. 

Rep.  378.  462 

(iaines  v.  Com.,  50  Pa.  St.  319,        398 

<  lale  v.  People,  26  Mich.  157,     79,  271 

<  lallagher  v.  People,  120  111.  179,  209 
Oallagher  v.  State,  10  Tex.  App. 

469,  28 

Gallaher  v.  State,  28  Tex.  App. 

247,  67 

Gamel  v.  State,  21  Tex.  App.  357,  540 
Gandolfo  v.  State,  11  Ohio  St. 

114,  96 

Gandy  v.  State,  23  Neb.  436, 

313,  314,  528 
Gannon  v.  People,  127  111.  507,  9 

Gantier  v.  State  (Tex.,  1897),  21 

S.  W.  Rep.  255,  118 

Garber  v.  State,  4  Coldw.  (Tenn.) 

161,  118,  119,  207 

Garcia  v.  State,  26  Tex.  App.  209, 

355,  362 
Garden  v.  Creswell,  2  M.  &  W. 

319,  316 

Gardiner  v.  People  (N.  Y.),  6 

Park  Cr.  Rep.  155,  59 

Gardner  v.  State,  96  Ala.  12,  489 

Gardner  v.  State,  90  Ga.  310,  386 

Gardner  v.  State,  106  111.  76,  177 

Gardner  v.  State,  55  N.  J.  L.  17,  24 
Gardner  v.  State  (Tex.,  1897),  34 

S.  W.  Rep.  945,  155 

Garfield  v.  State,  74  Ind.  60,  338 

Garland,  Ex  parte,  4  Wall.  (U.  S.) 

333  256 

Garm'ire  v.  State,  104  Ind.  444,  485 
Carner  v.  State,  28  Fla.  113, 

205,  208,  266,  390 
Garrett  v.  State,  97  Ala.  18,  388 

Garrison  v.  People,  87  111.  96,  108 

Garrison  v.  People,  6  Neb.  274,  477 
Garrity  v.  People,  107  111.  162,  188 
Gartman  v.  State,  16  Tex.  App. 

215,  527 

Garvin  v.  State,  52  Miss.  207,  66 

( }aun  v.  State,  7  Ohio  Dec.  6,  433 

Gaunt  v.  State,  50  N.J.  L.  490, 

65,  590 
Gemmill    v.   State     (Ind.,    1897) 

43  N.  E.  Rep.  909.  271,  296,  594 

Geuiug  v.  State,  1  McCord  573,         34 


xliv 


TABLE    OK    CASES. 


[References  are  to  Pages.'] 


Genz  v.  State  (N.  J.,  1897),  37  Atl. 

Rep.  69,  193 

George  v.  State,  16  Neb.  475,  80 

Gerard  v.  State,  10  Tex.  App.  690,  349 
Getzlaff  v.  Seliger,  43  Wis.  297,  223 
Gholston  v.  State,  33  Tex.  342,  369 
Gibson  v.  State,  89  Ala.  121,  401 

Gibson  v.  State,  38  Miss.  313,  460 

Gibson  v.  State  (Miss.,  1895).  16 

So.  Rep.  298,  393 

Gibson  v.   State,  34  Tex.   Crim. 

Rep.  218,  290 

Giffard  v.  People,  148  111.  173,  471 
Gilerease  v.  State,  33  Tex.  Crim. 

Rep.  619,  328,  400 

Giles  v.  State,  6  Ga.  276,  16,  424 

Gilleland  v.  State,  24  Tex.  App. 

524,  151 

Gilliam  v.  State,  1  Head  (Tenn.) 

39,  293 

Gillum  v.  State,  62  Miss.  547,  384 

Gilmanton  v.  Ham,  38  N.  H.  108,  589 
Gilmore  v.  State,  99  Ala.  154,  434 

Gil  more  v.  State  (Tex.,  1896),  33 

S.  W.  Rep.  120,  362 

Gilvard  v.  State,  98  Ala.  59,  295 

Gindrat  v.  People,  138  111.  103,  58 

Ginn  v.  Com.,  5  Litt.  (Ky.)  300,  597 
Girous  v.  State,  29  Ind.  93,  377 

Gise  v.  Com.,  81  Pa.  St.  428,  464 

Givens  v.  Com.,  29  Gratt.  (Va.) 

830,  464,  474,  476 

Givens  v.  State,  35  Tex.  Cr.  Rep. 

563,  34  S.  W.  Rep.  626,  70 

Glazier  v.  Hebron,  62  Hun  (N.Y.) 

137,  164 

Glenn  v.  State,  46  Ind.  368, 

586,  587,  600 
Glidewell  v.  State,  15  Lea  (Tenn.) 

133,  582 

Glover  v.  State,  109  Ind.  391,  513 

Glover  v.  Thomas,  75  Tex.  506,  53 
Godfrey  v.  State,  31  Ala.  323,  27,  468 
Goersen  v.  Com.,  99  Pa.  St.  388, 

109,  111,  114 
Goetz  v.  State,  41  Ind.  162,  535 

Goforth  v.  State,  8  Humph. (Tenn.) 

37,  367,  368 

Goldman  v.  State,  75  Md.  621,  334 
Goldsby  v.  United  States,  160  IT.  S. 

70,  59,  310 

Goldsmith   v.  State,  32  Tex.   Cr. 

Rep.  112,  249,  441 

Goldsmith  v.  State  (Ga.,  1895),  25 

S.  E.  Rep.  624,  543 

Goldstein  v.  People,  82  N.  Y.  231,  360 
Goley  v.  State,  85  Ala.  333,  339 

Gomprecht  v.  State  (Tex.,  1897), 

37  S.  W.  Rep.  734,  533 


Gonzales  v.  State,  12  Tex.  App. 

657,  166 

Gonzales  v.  State,  32  Tex.  Cr.  Rep. 

611,  473 

Goodall  v.  State,  1  Ore.  333,  128 

Goode  v.  State,  32  Tex.  Cr.  Rep. 

505  297 

Goode  v.  United  States,  159  U.  S. 

663,  536 

Goodman  v.  State,  Meigs  (Tenn.) 

195,  330,  331 

Goodwin  v.  State,  102  Ala.  87,  103 
Goodwin  v.  State,  96  Ind.  550, 

193,  195,  206,  207,  392 
Goodwine  v.  State,  5  Ind.  App. 

63,  594, 597 

Goon  Bow  v.  People,  160  111.  438, 

77,  119,  278,  421 
Gordon's  Case,  2  Leach  Cr.  L.  581,  58 
Gordon  v.  Com.,  92  Pa.  St.  216,  240 
Gordon  v.  State,  3  Clarke  410,  96,  103 
Gordon  v.  State,  48  N.  J.  L.  611,  526 
Gore  v.  People,  162  111.  259,  160 

Gormley  v.  Bunyan,  138  U.  S.  623,  568 
Graff  v.  People,  134  111.  380,  341 

Graham  v.  Com.,  16  B.  Mon.  (Ky.) 

586,  197,  198 

Graham  v.  Larimer,  83  Cal.  173,  270 
Graham  v.  People,  63  Barb. 

(N.Y.)  468,  215 

Graham  v.  State,  50  Ark.  161,  327,  330 
Granado  v.  State  (Tex.),  35  S.  W. 

Rep.  1069,  10 

Granberry  v.  State,  61  Miss.  440,  447 
Grand  Jury,  In  re,  2  Sawy.  670,  39 
Granger  v.  State  (Tex.,  1895),  31 

S.  W.  Rep.  671,  376 

Grant  v.  State,  97  Ala.  35,  339 

Grant  v.  State,  89  Ga.  393,  278 

Grant  v.  State,  97  Ga.  789,  582,  583 
Grant  v.  State,  33  Tex.  Cr.  Rep. 

527,  532 

Grate  v.  State,  23  Tex.  App.  458,  584 
Grattan  v.  Metro.  L.  I.  Co.,  80 

N.  Y. 281,  226 

Gravely  v.  Com.,  86  Va.  396,  360,  441 
Gravely  v.  State,  38  Neb.  871,  31,  401 
Graves' v.  Com.,  155  Mass.  163,  571 
Graves  v.  State,  45  N.  J.  L.  347,  198 
Graves  v.  State,  12  Wis.  659,  360 

Gray  v.  Pentland.  2  S  &  R.  23,  213 
Gray  v.  State,  55  Ala.  86,  503 

Grayson  v.  Com.  (Ky.,  1896),  34 

S.  W.  Rep.  1035,    '  389 

Green  v.  Bedell.  48  N.  Y.  546,  246 
Green  v.  Com.  (Ky.,  1896),  33  S. 

W.  Rep.  100,  382 

Green  v.  State,  51  Ark.  189,  9 

Green  v.  State,  17  Fla.  669,  310 


TABLE    OF    CASES. 


xlv 


[  Referenct  ■-  an  to  "Pages.  ] 


Green  v.  State,  109  Ind.  175,  534 

Green  v.  State,  88  Tenn.  614,  198 

Green  v.  State  (Tex.,  1891),  12  S. 

W.  Rep.  872,  299 

Green  v.  State  (Tex.,  1897),  33  S. 

W.  Rep.  120,  352 

Green  v.  State  (Tex.,  1896),  35  S. 

W.  Rep.  971,  486 

Greenfield  v.  People,  85  N.  Y.  75, 

147,  166,  179,  398 
Oreenough.  In  re,  31  Vt.  279,  560 

Greenougli  v.  Gaekell,  1  M.  &  K. 

98,  224 

Greer  v.  State,  87  Ga.  559,  584 

Grentzinger  v.  State,  31  Neb.  460,  362 
Griffin  v.  State,  76  Ala.  29,  468,  469 
Griffin  v.  State,  90  Ala.  596,  391 

Griffin  v.  State,  13  Ark.  L68,  366 

Griffin  v.  State,  14  Ohio  St.  55, 

95,  96,  98 
Griffin  v.  State,  26  Tex.  App.  157, 

299 
Griffin  v.  State  (Tex.),  20  S.  W. 

Rep.  552,  328 

Griffith  v.  State,  90  Ala.  53S,  104,  124 
Grigsbv  v.  State,  4  Baxt.  (Tenn.)  1, 

156 
Grimm  v.  People,  14  Mich.  300,  236 
Griswold  v.  State,  24  Wis.  144,  182 
Grogan  v.  State,  63  Miss.  147,  549,  551 
Groom  v.  State,  23  Tex.  App.  82,  42 
Grubb  v.  State,  117  Ind.  277,  195 

Guetig  v.  State,  66  Ind.  94,  196,  204 
Guild's  Case,  10  N.  J.  L.  163,  164 

Guiteau's  Case,  10  Fed.  Rep.  161, 

200,  201 
Gnnn,  In  re,  50  Kan.  155,  315 

Gunter  v.  State,  83  Ala.  96,  296 

Gunter  v.  State.  Ill  Ala.  23,  397 

Guptill  v.  Verback,  58  Iowa  98,  219 
Guthrie  v.  State,  16  Neb.  667,  515 

Gutierrez,  Ex  parte,  45  Cal.  429,  570 
Gutseh  v.  Mcllhargev,  69  Mich. 

377  273 

Guv  v.  State,  9  Tex.  App.  161,  163 
Guynes  v.  State,  25  Tex.  App.  584,  433 


H 


Haase  v.  State,  53  N.  J.  L.  34,  424 
Habersham  v.  State,  56  Ga.  61,  338 
Hackett  v.  People,  54  Barb.  (N.Y.) 

370,  137 

1 1  ager  v.  State,  71  Ga.  164,  490 

Hagen  v.  State,  5  Baxt.  (Tenn.) 

615,  201 

Haile  v.  State,  11  Humph.  (Tenn.) 

153,  20S 


Haines  v.  Ter.,  3  Wyo.  167, 
Han  v.  State,  16  Neb.  601, 

320  322 
Halbrook  v.  State,  34  Ark.  511, 

459,  461, 
Hale  v.  Richards,  80  Iowa  164, 
llalev  v.  Stale.  63  Ala.  83, 
Hall  v.  Conors..  82  Md.  618, 
Hall  v.  People,  47  Mich.  636,    475, 
Hall  v.  People,  6  Park.  Cr.  Rep. 

(N.  Y.  1671, 
Hall  v.  State,  40  Ala.  698,  101, 

v.  State,  31  Fla.  176, 
v.  State,  34  Ga.  208, 
v.  State,  48  Ga.  607, 
v.  State,  132  Ind.  317, 

121,  157,373,  391,  394,395, 
State,  6  Baxt.  (Tenn.)  522, 


Hall 
Hall  v 
Hall  v 
Hall  v 
lis 
Hall  v 


Hall  v.  State  (Tex.,  1897),  22  S.W. 

Rep.  141, 
Hall  v.  State  (Tex.,  1896),  34  S.W. 

Rep.  121, 
Halleckv.  State,  65  Wis.  147, 
Holloranv.  State.  80  Ind.  586, 
Hamilton  v.  People,  29  Mich.  414, 
13,89,  221,334,337, 
Hamilton  v.  People,  46  Mich.  186, 
Hamilton  v.  State,  62  Ark.  543, 
Hamilton  v.  State  (Ark.,  1897),  36 

S.  W.  Rep.  1054, 
Hamilton  v.  State,  96  Ga.  301, 
Hamilton  v.  State,  75  Ind.  586, 

532. 
Hamilton,  etc.,  Soc.  v.  Northwood, 

86  Mich.  315, 
Hammil  v.  State,  90  Ala.  577, 

129,  130, 
Hammond  v.  State  (Miss.),  21  So. 

Rep.  149,  37, 

Hammond  v.  State,  39  Neb.  252, 
Hanijiton  v.  State,  10  Lea  639, 
Ham's  Case,  11  Maine  391, 
Hanawalt  v.  State,  64  Wis.  84, 

448, 
v.  State,   6  Tex.   App. 


Handline 

347, 
Han  ley  v 
Hannel  v 


Donohgue,  116  IT.  S.  1, 
State.  4  Ind.  App.  485, 
Hanners  v.  McClelland,  74  Iowa 

318, 
Hannev  v.  Com.,  116  Pa.  St.  322, 
Hann.m  v.  State,  70  Wis.  44S,  468. 
Bannum  v.  State,  90  Tenn.  647, 
Hanoff  v.  State,  37  Ohio  St.  178, 

74,  76,  77 
Hanrahan  v.  People,  91  111.  142, 
Hans   v.    State   (Neb.,    1897),   69 
N.  W.  Rep.  83, 


277 

325 

463 
347 
102 
309 

A  SO 

110 
385 
553 
362 
121 

397 

321 

85 

532 
433 

244 

553 
596 
145 

74 
10 

534 

57 

131 

101 

474 
370 
446 

590 

146 
568 
368 

259 

100 

47  _' 


182 
43 


xlvi 


TABLE    OF    CASES. 


[.References  are  to  Pages."] 


Hanscom  v.  State,  93  Wis.  273,  526 
Hansford  v.  State  (Miss.),  11  So. 

Rep.  106,  31,  381 

Harden  v.  State,  109  Ala.  50,  181 

Hardesty  v.  Com.,  88  Ky.  539,  327 
Hardin  v.  State,  63  Ala.  38,  544 

Harding  v.  State,  34  Ind.  359,  487,  488 
Hardtke  v.  State,  67  Wis.  552, 

160,471,475,476,481 

Hardy  v.  Merrill,  56  N.  H.  227,  202 
Hardy  v.  State,  7  Mo.  607,  337 

Hardy  v.  United   States,   3   App. 

D.  C.  35,  164,  169,  175 

Harlan  v.  State,  134  Ind.  339,  45 

Harper  v.  State,  71  Miss.  202,  360 

Harrington  v.  St.  Louis,   89  Mo. 

208  227 

Harrington  v.  State,  36  Ala.  236,  85 
Harrington  v.  State,  19  Ohio  St. 

264,  100,  101,  104 

Harris,  In  re,  4  Utah  5,  279 

Harris  v.  People,  64  N.  Y.  148,  41,  527 
Harris  v.  State,  31  Ala.  362,  530 

Harris  v.  State,  96  Ala.  24,  393 

Harris  v.  State,  73  Ga.  41,  367,  368 
Harris  v.  State,  84  Ga.  269,  438 

Harris  v.  State,  30  Ind.  131,  299 

Harris  v.  State,  24  Neb.  803,  281 

Harris  v.  State,  5  Tex.  11,  535 

Harris  v.  State,  6  Tex.  App.  97,  168 
Harris  v.  State,  15  Tex.  App.  411,  362 
Harris  v.  State,  34  Tex.  Cr.  Rep. 

495,  36  S.  W.  Rep.  88,  165 

Harrison  v.  People,  50  N.  Y.  518,  353 
Harrison  v.  R.  R.  Co.  (Cal.,  1897), 

47  Pac.  Rep.  1019,  228 

Harrison  v.  State,  79  Ala.  29,  391 

Harrison  v.  State,  83  Ga.  129,  184 

Harsdorf  v.  State  (Tex.),  18  S.W. 

Rep.  415,  358 

Hart  v.  Com.,  85  Kv.  77,  390 

Hart  v.  State,  15  Tex.  App.  202,  60 
Hart  v.  State,  21  Tex.  App.  163,  381 
Hart  v.  State,  22  Tex.  App.  563,  362 
Hartford  v.  State,  96  Ind.  461,  74,  295 
Hartley  v.  Cataract,  etc.,  Co. 

(N.  Y.),  64  Hun  634,  267 

Hartman  v.  Aveline,  63  Ind.  344,  558 
Hartranft's  Appeal,  85  Pa.  St. 

433,  213 

Hartung  v.  People  (N.  Y.),  4 

Park.  Cr.  Rep.  319,  374,  378 

Harty  v.  Malloy,  67  Conn  339, 

594,  599 
Harvev  v.  State,  35  Tex.  Cr.  Rep. 

545,  34  S.  W.  Rep.  623,  261 

Harwood  v.  State  (Ark.,  1897),  37 

S.  W.  Rep.  304,  321 

Haskew  v.  State,  7  Tex.  App.  107,   542 


Haslip  v.  State,  10  Neb.  590,  484 

Hatchard  v.  State,  79  Wis.  357,  411 
Hathcock  v.  State,  88  Ga.  91, 

101,  505,  507 
Hathcote  v.  State,  55  Ark.  181,  546 
Hauk  v.  State  (Ind.,  1897),  46  N. 

E.  Rep.  127,     161,  228,  293,  340,  414 
Hauk  v.  State  (Ind.,  1897),  47  N. 

W.  Rep.  465,  182 

Haun  v.  State,  13  Tex.  App.  383,  490 
Haverstick  v.  State,  6  Ind.  App. 

595  329 

Hawes  v.  State,  88  Ala.  37, 

216,  217,  269 
Hawkins  v.  State,  29  Fla.  554,  265 
Hawkins  v.  State,  136  Ind.  630, 

341,  477 
Hawkins  v.  State,  27  Tex.  App. 

273,  254 

Haworth  v.  Gill,  30  Ohio  St.  527,  593 
Hawthorne  v.  State,  61  Miss.  749, 

388,  389 
Hayden  v.  State,  4  Blackf.  (Ind.) 

546,  422 

Hayes  v.  State  (Tex.),  35  S.  W. 

Rep.  983,  277 

Haygood  v.  State,  98  Ala.  61,  408 

Haynes  v.  State,  15  Ohio  St.  455, 

457,  483 
Hays  v.  Com.  (Ky.,  1893),  14  S. 

W.  Rep.  833,  141 

Hays  v.  State,  110  Ala.  23,  97 

Hays  v.  State,  40  Md.  633,  145,  412 
Havs  v.  State,  30 Tex.  App.  472,  441 
Hays  v.  State  (Tex.),  20  S.  W. 

Rep.  361,  261 

Hayward  v.  Knapp,  22  Minn.  5,  284 
Head  v.  Thompson,  77  Iowa  263,  233 
Heald  v.  Thing,  45  Maine  392,  205 
Heath  v.  Com.,  1  Rob.  (Va.)  735, 

109,  277,  382 
Heath  v   State,  36  Ala.  373,  510 

Hedley,  Ex  parte,  31  Cal.  108,  346 

Heflin  v.  State,  88  Ga.  151, 

526,  527,  529 

Heilman  v.  Com.,  84  Ky.  457,  468 
Heine  v.  Com.,  91  Pa.  St.  145, 

100,  101,  552 

Heldt  v.  State,  20  Neb.  492, 

169,  170,  306 

Helfrich  v.  State,  33  Pa.  St.  68,  444 
Hellems  v.  State,  22  Ark.  207,  278 
Heller  v.  People,  22  Colo.  11,  242 

Helm  v.  State,  67  Miss.  562, 

259,  302,  303 

Hemminger  v.  Western  Assn.,  95 

Mich.  355,  270 

Hemphill  v.  State,  71  Miss.  877,      528 


TABLE    OF    CASES. 


X  I  V  i  i 


[References  are  to  Pages.'] 
Henderson  v.  People,  124  111.  607, 


407,  408,  409 
Henderson  v.  State,  70  Ala.  23,  364 
Henderson  v.  State,  11  Tex.  403, 

186,  490,  495 
Henderson  v.  State,  22  Tex.  593,  329 
Henderson  v.  State,  38  S.  W. 

Rep.  608,  44 

Henderson  v.  State  (Tex.,  1897), 

39  S.  W.  Rep.  116,  293 

Hendrick's  Case,  5  Leigh  (Va.) 

707,  497 

Hendriekson  v.  People,  10  N.  Y. 

13,  166 

Hennessy  v.  State,  23  Tex.  App. 

340,  484, 487 

Henrich,  In  re,  5  Blatch.  C.  C.  414, 

557,  564,  565 
Henry  v.  State,  34  Ohio  St.  128,  495 
Henry  v.  State  (Neb.,  1897),  70 

X.  W.  Rep.  924,  186 

Henry  v.  State  (Tex.,  1895),  30 

S.  W.  Rep.  802,  395 

Henson  v.  State  (Ala.,  1897),  21 

So.  Rep.  79,  389,  401 

Hepler  v.  State,  58  Wis.  46,  56,  57 
Hernandez  v.  State,  18  Tex.  App. 

134,  215,  217 

Hernandez  v.  State,  32  Tex.  Cr. 

Rep.  271,  375 

Herrick,  In  re,  78  Ky.  23,  309 

Herrick  v.  Swornlev,  56  Maine  439, 

325 
Herring  v.  Goodson,  43  Miss.  392, 

591,  593 
Hessv.  Grimes  (Kan.,  1897),  48 

Pac.  Rep.  596,  557 

Hess  v.  State,  5  Ohio  St.  5, 

484  497  499 
Hester  v.  Com.,  85  Pa.  St.  139,  '  256 
Hester  v.  State,  103  Ala.  83,  294 

Heuston  v.  Simpson,  115  Ind.  62,  227 
Hewitt  v.  Prime,  21  Wend.  (N.  Y.) 

74,  226   227 

Hev'v.  Com.,  32  Gratt.  (Va.)  946,'  277 
Heyward,  1  Sandf.  701,  561 

Hibbs,  Ex  parte,  26  Fed.  Rep.  421, 

491 
Hickam  v.  People,  137  111.  75, 

109,  331,  382 
Hickerson  v.  Benson,  8  Mo.  8,  531 
Hickman  v.  State,  38  Tex.  190,  202 
Hickory    v.    United    States,    160 

U.  S.  408,  73,  149 

Hicks  v.  State,  99  Ala.  169,  77,  145 
Higgins  v.  People,  58  N.  Y.  377,  470 
Higler  v.  People,  44  Mich.  299, 

504,  505 
Hildreth  v.  People,  32  111.  36,         357 


Ililerv.  People,  156  111.  511,  45 

Hill  v.  Com.  (Ky.),15S.  W.  Rep. 

870,  440 

Hill  v.  Com.,  2  Gratt.  (Va.)  594, 

131,  135,  381 
Hill  v.  Com.,  88  Va.  633,  341 

Hill  v.  State,  41  Ga.  484,  237 

Hill  v.  State,  (53  Ga.  578,  28 

Hill  v.  State,  64  Miss.  431,  128 

Hill  v.  State  ( Miss.,  1895),  16  So. 

Hep.  901,  388,399 

Hill  v.  State,  91  Tenn.  521,  297 

Hill  v.  State  (Tex.,  1897),  35  S.  W. 

Rep.  660,  151 

Hill  v.  State  (Tex.,  1897),  38  S.  W. 

Rep.  987,  417 

Hill  v.  State  (Tex.,  1897),  39  S.  W. 

Rep.  666,  416 

Hines  v.  State,  26  Ga.  614,  574 

Hines  v.  State,  93  Ga.  187,  34 

Hinshaw  v.  State  (Ind.,  1897),  47 

N.  E.  Rep.  157,  399 

Hirn  v.  State,  98  Ala.  23,  279 

Hirsh,  In  re,  74  Fed.  Rep.  928,         311 
Hirschman  v.  People,  101  111.568, 

102,  103,  105 
Hitchins  v.  State,  39  N.  Y.  454,  532 
Hite  v.  Com.  (Ky.,  1893),  20  S.  W. 

Rep.  217,  203 

Hix  v.  People,  157  111.  382,  360 

Hizer  v.  State,  12  Ind.  330,  514 

Hobbs  v.  State,  133  Ind.  404,  297 

Hobson  v.  State,  44  Ala.  380,  368,  370 
Hockenberger  v.  State,  68  N.  W. 

Rep.  1037,  351 

Hodge  v.  State,  97  Ala.  37,  17 

Hodge  v.  State,  26  Fla.  11, 

254,  262,  264,  265 
Hodgson  v.  Nickell,  69  Wis.  308,  587 
Hodgmen    v.     People,    4    Denio 

(N.  Y.)  235,  34 

Hoff  v.  Fisher,  26  Ohio  St.  7,  600 

Hoge  v.  People,  117  111.  35, 

188  291  294 
Hoffman  v.  State,   12  Tex.  App.' 

406,  46 

Holcombv.  People,  79  111.  409, 

596,  597 
Holeombe  v.  State,  28  Ga.  66,  54,  252 
Holden  v.  State,  18  Tex.  App.  91,  552 
Holder  v.  State,  58  Ark.  473,  108 

Holland   v.  State  (Fla.,  1897),  22 

So.  Rep.  298,  181 

Holland  v.  State,  131  Ind.  47,  100,  101 
Holland  v.  State,  31  Tex.  Cr.  Rep. 

345  329 

Holland  v.  State,  60  Miss.  939,        524 
Holliday  v.  State  (Tex.),  32  S. 

W.  Rep.  661,  341 


xlviii 


TABLE    OF    CASES. 


[References  are  to  Pages.'] 


Hollender  v.  Hall,  58  Hun  (N.  Y.) 

604,  316 

Hollingsworth  v.  State,  79 Ga.  605,  276 
Hollingsworth  v.  State,  111  Ind. 

289,  56,  351 

Hollis  v.  State,  27  Fla.  387,  466 

Holman  v.  Kimball,  22  Vt.  555,  216 
Holmes  v.  State,  88  Ala.  26,  272,  292 
Holmes  v.  State,  100  Ala.  80,  31 

Holmes,  Ex  parte,  21  Neb.  124,  579 
Holsey  v.  State,  89  Ga.  393,  364 

Hoist  v.  State,  23  Tex.  App.  1, 

254,  468,  469,  470 
Holtz  v.  State,  76  Wis.  99,  302,  306 
Hood  v.  State,  56  Ind.  263,  444 

Hooker  v.  State,  4  Ohio  348,  44,  355 
Hoover  v.  State,  48  Neb.  184,  202 

Hope  v.  People,  83  N.  Y.  418,  37 

Hopkins  v.  Com.,  3  Bush  (Ky.) 

480,  544 

Hopper  v.  State,  54  Ga.  389,  448 

Hopps  v.  People,  31  111.  385, 

96,  102,  198 

Hopt  v.  People,  104  TJ.  S.  631, 

205,  208,  209 

Hopt  v.  Utah,  110  U.  S.  474, 

23,  69,  162,  164 
Hopt  v.  Utah,  120  U.  S.  430,  372 

Horan  v.  State,  32  Minn.  394,  121 

Horan  v.  State,  7  Tex.  App.  183, 

510,  511 
Horn  v.  State,  98  Ala.  23,  109,  341 
Horn  v.  State,  102  Ala.  144,  152 

Hornbeck  v.  State,  35  Ohio  St. 

277,  468,  470 

Hornsby  v.  State,  94  Ala.  55,  59 

Horton  v.  State,  53  Ala.  488,  325 

Horton  v.  State,  66  Ga.  690, 

550,  551,  552 
Houser  v.  State,  58  Ga.  78,  25 

Houser  v.  State,  93  Ind.  228,  590,  599 
Housh  v.  People,  75  111.  487,  524 

Howard  v.  State,  108  Ala.  571,  10 

Howard  v.  State,  50  Ind.  190,  185,  193 
Howe  v.  State,  110  Ala.  54,  542 

Howell  v.  Blackwell,  7  Ga.  443,  309 
Howell  v.  State,  37  Tex.  591,  495 

Hoy  v.  Morris,  13  Gray  (Mass.) 

519,  216 

Hoyt  v.  Hoyt,  112  N.  Y.  483,  226 

Hovt  v.  People,  140  111.  588,  331 

Hroneck  v.  People,  134  111.  139,  251 
Hubbard  v.  State,  109  Ala.  1,  363 

Huber  v.  State,  57  Ind.  341,  420 

Huber  v.  State,  126  Ind.  185, 

297,  477,  478 
Hudelson  v.  State,  94  Ind.  426,  20 
Hudson  v.  Roos,  76  Mich.  173,        322 


Hudson  v.  State,  9  Yerg.  (Tenn.) 

407,  367 

Hudson  v.  State,  28  Tex.  App. 

323,  294 

Hudspeth  v.  State,  50  Ark.  534, 

292  583 
Huff  v.  Com.   (Ky.,  1896),  37   S.' 

W.  Rep.  1046,  405,  408 

Huffman  v.  State,  28  Tex.  App. 

174,  77,  145 

Huff  man  v.  State,  29  Ala.  40,  533 

Hughbanks,  In  re,  44  Kan.  105,  312 
Hughes  v.  Boone,  102  N.  Car.  137,  219 
Hughes  v.  State,  103  Ind.  344, 

368,  367 
Hughes  v.  Ward,  38  Kan.  452,  273 
Humbard  v.  State,  21  Tex.  App. 

200,  427 

Humphrey  v.  State,  78  Wis.  569, 

276,  583,  597 
Hunnicutt  v.  State,  18  Tex.  App. 

498,  256,  257 

Hunt  v.  State,  55  Ala.  138,  43 

Hunt  v.  State,  28  Tex.  App.  149, 

83,84 
Hunter  v.  State,  112  Ala.  77,  549,  550 
Hunter  v.  State  (Ala.,  1897),  21 

So.  Rep.  65,  551 

Hunter  v.  State,  43  Ga.  483,  384 

Hunter  v.  State,  40  N.  J.  L.  496, 

121,  124 
Hunter  v.  State,  21  So.  Rep.  305,  161 
Hunter  v.  State  (Tex.,  1897),  37  S. 

W.  Rep.  323,  352 

Hurd  v.  Moring,  1  C.  &  P.  372,  218 
Hurley  v.  State,  29  Ark.  272,  281 

Hurlevv.  State   (Tex.,  1897),  33 

S.  W.  Rep.  354,  259 

Hurst's  Case,  4  Dall.  387,  317 

Hurst  v.  State,  79  Ala.  55,  524 

Hussey  v.  State,  87  Ala.  121,  231 

Huston  v.  People,  53  111.  App.  501,  29 
Huston  v.  People,  121  111.  497,  477 
Hutcherson  v.  State  (Tex..  1896), 

35  S.  W.  Rep.  375,  501,  528,  529 

Hutchins  v.  State.  13  Ohio  198,  497 
Hutchinson  v.  State,  19  Neb.  263.  589 
Huttman,  In  re,  70  Fed.  Rep.  699,  213 
Hvden  v.  State,  31  Tex.  Cr.  Rep. 

401,  298 

Hynes  v.  McDermott,  82  NY.  41,  492 


Impson  v.  State  (Tex.,  1892),  19 

S.  W.  Rep.  677,  546 

Ingalls  v.  State,  48  Wis.  647, 

206,  207,  360.  571 


TAIJLE    OF    CASES. 


xlix 


[References  arc  to  Pages.] 


Ingram  v.  State,  39  Ala.  247,  347 

Ingram  v.  State,  67  Ala.  67,  L03 

digram  v.  stale,  24  Neb.  33,  589 
[nman  v.  State,  30  S.  W.  Rep. 

219,  245 

trby  v.  State,  32  Ga.  496,  28 
Irvine,  Ex  parte,   74  Fed.  Rep. 

954                                                 89  303 

Irvine  v.  State,  18  Tex.  App.  51,  '  545 
Isaacs  v.  United  States,  159  U.  S. 

487,  377 


Jackson  v.  Archibald,  12  Ohio  Ct. 

Rep.  155, 
Jackson  v.  Com.,  19  Gratt.  (Va.) 

656,  131, 

Jackson  v.  Com.  (Ky.,  1897),  38 

S.  W.  Rep.  422,  163, 

Jackson  v.  Crilly,  16  Colo.  103, 
Jackson  v.  Seager,  2  D.  &  L.  13, 
Jackson  v.  State,  78  Ala.  471, 
Jackson  v.  State,  81  Ala.  33, 
Jackson  v.  State,  54  Ark.  248, 
Jackson  v.  State,  29  Ark.  62, 
Jackson  v.  State,  91  Ga.  271, 

State,  76  Ga.  551,  347, 
State,  116  Ind.  464, 
State,  7  Tex.  App. 


v. 
v. 

v. 


Jackson 
Jackson 
Jackson 

363, 
Jackson  v.  State,  28  Tex.  App. 

370, 
Jackson  v.  State  (Tex.,  1894),  25 

S.  W.  Rep.  773, 
Jackson  v.  State,  43  Tex.  421, 
Jackson  v.  State,  81  Wis.  127, 

99  324 
Jackson  v.  State,  91  Wis.  253,  22) 
Jackson,  Ex  parte,  96  U.  S.  727, 
Jacobs  v.  Com.,  121  Pa.  St.  586, 
Jacobs  v.  Hesler,  113  Mass.  157, 
Jacobs  v.  State,  4  Lea  (Tenn.) 
.  196, 
Jacques  v.  State,  66  111.  84, 
James  v.  State,  45  Miss.  572, 
Jamison  v. People,  145  111.  357,  148, 
Janzen  v.  People,  159  111.  440, 
Jasper  v.  Porter,  2  Lean  C.  C. 

579, 
Jaynes,  Ex  parte,  70  Cal.  638, 
Jefferds  v.  People,  5  Park.  Cr. 

Rep.  522, 
Jeffries  v.  State,  61  Ark.  308, 
Jeffries  v.  State,  9  Tex.  App.  598, 
Jenkins  v.  State,  31  Fla.  196, 
Jenkins  v.  State,  35  Fla.  737, 

166,  240, 
iv— Cr.  Ev. 


560 

284 

399 
323 
316 
291 
381 
327 
587 
341 
348 
447 

355 

442 

532 
513 

325 
470 
536 
200 
234 

244 
476 
920 
193 
475 

568 
229 

171 
341 
207 
267 

552 


Jenkins  v.  State,  53  Ga.  33, 

Jenkins  v.  State,  38  Ind.  133,  245 
Jenkins  v.  State.  80  Md.  72,      386,  388 

Jenkins  v.  State,  62  Wis.  49,  9 
Jenkins  v.  State,  34  Tex.  Cr.  Rep. 

201,  301 

Jesse  v.  State,  28  Miss.  100,  429 

Jessup  v.  State,  14  Ind.  App.  323,  534 
Jim  v.  State,  4  Humph.  (Tenn.) 

289,  280 
Joe  v.  State,  6  Fla.  591, 
Johnson  v.  Com.  (Ky.,  1891),  15 

S.  W.  Rep.  671,  442 

Johnson  v.  Com.,  81  Ky.  325,  11 

Johnson  v.  Com.,  87  Ky.  189,  4:;<i 

Johnson  v.  Com.,  90  Ky.  53,  516 
Johnson  v.  Daverne,  19  Johns. 

(N.  Y.)  134,  218 
Johnson  v.  Fort  Branch  Co.,  48 

Fed.  Rep.  191,  311 
Johnson  v.  People,  55  N.  Y.  512, 

571,576 
Johnson  v.  People,  140  111.  350, 

20,  599 
Johnson  v.  State,  17  Ala.  618,  136,  137 

Johnson  v.  State,  35  Ala.  363,  417 
Johnson  v.  State,  47  Ala.  9,      138,  235 

Johnson  v.  State,  59  Ala.  37,  181 

Johnson  v.  State,  61  Ala.  9,  367 
Johnson  v.  State,  94  Ala.  35, 

151,  266,  385 
Johnson  v.  State,  102  Ala.  1,    132,  13?. 

Johnson  v.  State,  60  Ark.  308,  461 
Johnson  v.  State  (Ga.,  1890),  12 

S.  E.  Rep.  471,  182 

Johnson  v.  State,  59  Ga.  142,  186 

Johnson  v.  State,  62  Ga.  299,  47 

Johnson  v.  State,  83  G a.  583,  584 

Johnson  v.  State,  85  Ga.  561,  582 

Johnson  v.  State,  88  Ga.  203,  395 

Johnson  v.  State,  89  Ga.  107,  430 
Johnson  v.  State,  13  Ind.  App. 

299,  43 

Johnson  v.  State,  17  Ohio  593,  469 

Johnson  v.  State,  27  Neb.  687,  470 
Johnson  v.  State,  1  Tex.  App. 

333,  323 
Johnson  v.  State,  9  Tex.  App. 

249,  490 
Johnson  v.  State,  12  Tex.  App. 

385,  363 
Johnson  v.  State,  17  Tex.  App. 

565,  98 
Johnson  v.  State,  21  Tex.  App. 

368,  188 
Johnson  v.  State,  22  Tex.  App. 

206,  394 
Johnson  v.  State,  27  Tex.  App. 

135,  232 


1 


TABLE  OF  CASES. 


420 
503 
296 

568 
590 

317 
558 
362 

531 
16 

154 

45 

340 


157 

501 

496,  497 


[References  ai 

Johnson  v.  State,  29  Tex.  App. 

150  377,  385 

Johnson  v.  State  (Tex.,  1896),  32 

S.  W.  Rep.  537, 
Johnson  v.  State,  41  Tex.  65, 
Johnston  v.  Todd,  5  Beav.  597, 
Jones  v.  I  lavs,  4  McLean  C.  C. 

521, 
Jones  v.  Jones,  45  Md.  144, 
Jones  v.  Knauss,  31  N.  J.  Eq. 

211, 
Jones  v.  Leonard,  50  Iowa  106, 
Jones  v.  People,  12  111.  259, 
Jones  v.  State,  26  Ala.  155, 
Jones  v.  State,  100  Ala.  88, 
Jones  v.  State  (Ala.,  1897),  18  So 

Rep.  237, 
Jones  v.  State,  58  Ark.  390, 
Jones  v.  State,  59  Ark.  417, 
Jones  v.  State,  1  Ga.  610, 
Jones  v.  State,  65  Ga.  147, 
Jones  v.  State,  93  Ga.  547, 
Jones  v.  State,  11  Ind.  357, 
Jones  v.  State,  71  Ind.  66, 

119,  121,  140,  142,  394 

Jones  v.  State,  89  Ind.  82,  281 

Jones  v.  State,  70  Md.  326,  413 

Jones  v.  State,  30  Miss.  653,  361 

Jones  v.  State,  70  Miss.  401,  138 

Jones  v.  State,  51  Ohio  St.  331, 
Jones  v.  State,  5  Sneed  (Tenn.) 

346, 
Jones  v.  State,  13  Tex.  168, 
Jones  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  992, 
Jones  v.  State,  31  Tex.  Cr.  Rep. 

177, 
Jones  v.  State,  34  Tex.  Cr.  Rep. 

490, 
Jones  v.Turpin,  6  Heisk.  (Tenn.) 

181, 
Jones  v.  United  States,  137  IT.  S. 

202, 
Jordan  v.  Circuit  Court,  69  Iowa 

177, 
Jordan  v.  Com.,  25  Gratt.  (Va.) 

943,  70,  420 

Jordan  v.  State,  79  Ala.  9,        305,  392 
Jordan  v.  State,  142  Ind.  422,  232 

Jordan  v.  State,  32  Miss.  382,  173 

Jordan  v.  State,  29  Tex.  App.  595,    82 
Joseoh  Smith,  Ex  parte,  3  McLean 

C.  C.  121,  561 

Judson,  Ex  parte,  3  Blatchf .  C.  C. 

89,  278 

Judson,  In  re,  3  Blatchf.  C.  C.  148,  521 
Jupitz  v.  People,  34  111.  516,  100 

Justice  v.  State,  99  Ala.  180,  138 


e  to  Pages.'] 


493 
169 

129 

328 


240 
514 
521 


K 


Kaine,  Ex  parte,  3  Blatchf.  1, 

555  566 
Kahlenbeck  v.  State,  119  Ind.  118,  96 
Kahn  v.  State  (Tex.,  1897),  38 

S.  W.  Rep.  989,  447 

Kane  v.  Com.,  109  Pa.  St.  541,        576 
Kaufman  v.  State,  49  Ind.  248, 

21,  188 
Kean  v.  Com.,  10   Bush  (Ky.) 

190,  326 

Keating  v.  People,  160  111.  480, 

21,  331,356,357,  499 
Kee  v.  State,  28  Ark.  155,  96 

Keefe  v.  State,  19  Ark.  190,  417 

Keenan  v.  Com.,  44  Pa.  St.  55,        208 
Keener  v.  People,  18  Ga.  194, 

98,  102,  103,  197,  387 
Kehoe  v.  Com.,  85  Pa.  St.  127, 

133  138 
Keller  v.  State,  51  Ind.  Ill,  502,'  503 
Kelley  v.  People,  55  N.  Y.  565, 

154,  155,  549 
Kelly  v.  People,  17  Colo.  130, 

277,  278 
Kelly  v.  People,  115  111.  583,  571 

Kelly  v.  State,  3  Smedes  &  M. 

(Miss.)  518,  208 

Kendall  v.  Com.  (Ky.,  1892),  19 

S.  W.  Rep.  173,  395 

Kendall  v.  May,  10  Allen  (Mass.) 

59,  251 

Kendall  v.  State,  65  Ala.  492,  181 

Kennedy  v.  Com.,  2  Mete.  (Ky.) 

36,  496 

Kennedy  v.  Com.,  78  Ky.  447, 

28,  150 
Kennedy  v.  People,  39  N.  Y.  245, 

372,  373,  383,  384 
Kennedy  v.  State,  31  Fla.  428,  9 

Kent  v.  State  (Ark.,  1897),  41 

S.  W.  Rep.  849,  353 

Kent  v.  Com.,  6  Cr.  Law  Mag. 

520,  274 

Kent  v.  State,  84  Ga.  438,  435 

Kent  v.  State,  42  Ohio  St.  426,         294 
Kenyon  v.  State,  26  N.  Y.  203, 

454,  455 
Kernan  v.  State,  11  Ind.  471,  511 

Kernan  v.  State,  65  Md.  253,  39< 

Ketchingman  v.  State,  6  Wis.  417, 

302 
Keves  v.  State,  122  Ind.  527,  76 

Kilbourn  v.  State,  9  Conn.  560,       577 
Killet  v.  State,  32  Ga.  292,  542 

Killinsv.  State,  28  Fla.  313,     109,382 
Kinchelow  v.  State,  5  Humph. 

(Tenn.)  9,  94,  160 


TABLE    OF    CASES. 


li 


[References  are  to  Pages.] 


King  v.  King,  42  Mo.  App.  454,  234 
King  v.  State,  40  Ala.  314,  169 

King  v.  State,  55  Ark.  (504,  389 

King  v.  State  (Ga.,  1897),  26  S.  E. 

Rep.  480,  441 

King  v.  State,  77  Ga.  734,  294,  295 
King  v.  State,  44  Ind.  285,  43 

King  v.  State  (Miss.),  21  So.  Rep. 

235,  198 

King  v.  State,  91  Tenn.  617,  142,  584 
King  v.  State,  32  Tex.  Cr.  Rep. 

463,  529 

K  i  Qg  v.  State,  43  Tex.  351,  246 

Kingory  v.  United  States,  44  Fed. 

Rep.  677,  267 

Kingsbury's  Case,  106  Mass.  223,  560 
Kinsman  v.  State,  77  Ind.  132,  369 
Kinter  v.  State,  45  Ind.  175,  597 

Kirby  v.  People,  123  111.  436,  302 

Kirby  v.  State,  57  N.  J.  L.  320,  514 
Kirby  v.  State,  23  Tex.  App.  13,  164 
Kirk  v.  State  (Tex.,  1897),  37  S. 

W.  Rep.  440,  253 

Kistler  v.  State.  54  Ind.  400,  100,  101 
Kitchen  v.  State,  29 Tex.  App.  45,  528 
Klein  v.  People,  113  111.  596, 

185  188 
Klein  v.  State,  9  Ind.  App.  630,  '  416 
Klink  v.  People,  16  Colo.  467,  590 
Knapp's  Case,  9  Pick.  (Mass.) 

496,  37,173,175,282,283 

Knickerbocker  v.  People,  43  N.  Y. 

177,  439 

Knowles  v.  Scribner,  57  Maine 

495,  588 

Knowles  v.  State,  15  Mich.  408,  231 
Knowles  v.  State,  31  Tex.  Cr.  Rep. 

383,  328 

Koch  v.  State  (Ala.,  1897),  22  So. 

Rep.  471,  489 

Koerner  v.  State,  98  Ind.  7,  341,  397 
Roller  v.  State  (Tex.,  1896\  38  S. 

W.  Rep.  44,  394 

Kopke  v.  People,  43  Mich.  41,  463 

Kouns  v.  State,  3  Tex.  App.  13,  419 
Kunde  v.  State,  22  Tex.  App.  65,    551 


LaBeau  v.  People,  34  N.  Y.  223, 

302  391    393 
Lafferty  v.  State  (Tex.),  35  S.  W.' 

Rep.  374,  276,  277 

Lamar  v.  State,  63  Miss.  265,  381,  551 
Lamatt  v.  State,  128  Ind.  123,  590,  595 
Lamb  v.  State,  66  Md.  285,  410 

Lambe's  Case,  2  Leach.  Cr.  Law 

625,  167 


Lambert  v.  People,  29  Mich.  71, 

121,  128,  12'.),  138 
Lamberton  v.  State,  11  Ohio  282,  511 
Lambright  v.  State,  34  Fla.  564,  394 
Lamson  v.  Boyden,  160  III.  613,  303 
Lancaster  v.  State,  91  Tenn.  267, 

9,  11,  26,  47 
Lancaster  v.   State  (Tex.,  1896), 

35  S.  W.  Rep.  165,  384 

Land  v.  State,  34  Tex.  Cr.  Rep. 

330,  328 

Landis  v.  State,  70  Ga.  651,  188 

Lane  v.  Cole,    12  Barb.  (N.  Y.) 

680  312  313 

Lane'v.  State  (Tex.,  1894),28  S.W.' 

Rep.  202,  359 

Lanergan  v.  People,  39  N.  Y.  39,     157 
Lang  v.  State,  97  Ala.  41,  347,  351 

Langdale  v.  People,  100  111.  263,      485 
Langdon,  Ex  parte,  25  Vt.  680. 

278,  521 
Langdon  v.  People,  133  111.  382, 

195,  196,  198,  494,  584 
Langford  v.  State,  33  Fla.  233, 

111,  486 
LaPlant  v.   People,  60  111.   App. 

340  58^ 

Larki'n  v.  People,  61  Barb.  (N.  Y.) 

226,  45 

Larned  v.  Griffin,  12  Fed.  Rep. 

590,  316 

Laros  v.  State,  84  Pa.  St.  400, 

173,  367 
LaRosae  v.  State,  132  Ind.  219,  451 
Lascelles  v.  State.  90  Ga.  347,  491 

Lasher  v.  State,  30  Tex.  App.  387,     29 
Lasserot  v.  Gamble  (CaL,  1897), 

46  Pac.  Rep.  917,  546 

Lassiter  v.  State,  67  Ga.  739,  278 

Lassiter  v.  State,  35  Tex.  Cr.  Rep. 

545,  34  S.  W.  Rep.  751,  485 

Latham's  Case,  13  Ired.  (N.  Car.) 

33,  369 

Laughlin  v.  Com.  (Ky.,  1897),  37 

S.  W.  Rep.  590,  181 

Laughlin  v.  State,  18  Ohio  99,  469 

Lawhead  v.  State,  46  Neb.  607,    16,  90 
Lawrence  v.  Com.,  30Gratt.  (Va.) 

845,  408 

Lawrence  v.  State,  59  Ala.  61,  44 

Lawrence  v.  State  (Tex.,  1897),  36 

S.W.  Rep.  90,  582 

Lawson  v.  State,  20  Ala.  65,     115,  154 
Lawson  v.  State,  30  Ala.  14,  416 

Lawson  v.  State  (Tex.,  1895),  31 

S.  W.  Rep.  645,  545 

Layman's  Will,  40  Minn.  372,         221 
Lea  v.  State,  64  Miss.  294,  306 

Lea  v.  State,  94  Tenn.  495,  104 


lii 


TABLE    OF    CASKS. 


[References  are  to  Pages.'] 


Leache  v.  State,  22  Tex.  App.  279, 

193,  195 
Leak  v.  State,  61  Ark.  599,  526 

Leathers  v.  Salvar  Wrecking  Co., 

2  Woods  680,  62 

Ledbetter  v.  State,  32  S.  W.  Rep. 

(Tex.)  903,  354,  356 

Lee,  In  re,  46  Fed.  Rep.  59,  545 

Lee,  In  re,  41  Kan.  318,  587 

Lee  v.  State,  56  Ark.  4,  84 

Lee  v.  State,  2  Tex.  App.  338,  99,  100 
Lee  v.  State,  74  Wis.  45,  468 

Leeper  v.  State,  29  Tex.  App.  63,  68 
Leeper  v.  Texas,  139  U.  S.  462,  571 
Lefferts  v.  State,  49  N.  J.  L.  26,  50 
Lefforge  v.  State,  129  Ind.  551, 

115,  457 
Leggett  v.  State,  97  Ga.  426,  51 

Leindecker  v.  Waldron,  52  111.  283, 

218 
Lemons  v.  State,  97  Tenn.  560, 

372,  376,  386 
Lemons  v.  State,  4  W.  Va.  755,  102 
Leonard  v.  State  (Ala.,  1897),  22 

So.  Rep.  564,  365 

Leonard  v.  State,  29  Ohio  St.  408,  485 
Leonard  v.  State,  7  Tex.  App.  417, 

346 
Leslie  v.  State,  35  Fla.  184, 

45,  130,  131,  133,  389 
Lester  v.  State,  32  Ark.  727,  171 

Lettz  v.  State  (Tex.,  1894),  21 

S.  W.  Rep.  371,  534 

Leverich  v.  State,  104  Ind.  277,  390 
Levy  v.  State,  28  Tex.  App.  203, 

60,  294 
Lewallen  v.  State,  33  Tex.  Cr. 

Rep.  412,  150 

Lewer  v.  Com.,  15  S.  &  R.  (Pa.)  93, 

499 
Lewis  v.  Bruton,  74  Ala.  317,  516 

Lewis  v.  Com.,  78  Va.  732,  389 

Lewis  v.  People,  37  Mich.  518,  453 
Lewis  v.  People,  64  N.  Car.  607,  587 
Lewis  v.  State,  30  Ala.  54,  477 

Lewis  v.  State,  90  Ga.  95,  264 

Lewis  v.  State,  91  Ga.  168,  295 

Lewis  v.  State  (Tex.),  24  S.  W. 

Rep.  903,  45 

Lewis  v.  State,  29  Tex.  App.  201, 

119,  362 
Lieber  v.  Com.,  9  Bush  (Ky.)  1,  137 
Lightfoot  v.  State,  20  Tex.  App.  77,  11 
Liles  v.  State,  30  Ala.  24,  123,  147 

Limouze  v.  People,  58  111.  App. 

314,  501 

Linsday  v.  People,  6  N.  Y.  143, 

11,  88,90,  147 


Lindsev  v.  State,  38  Ohio  St.  507, 

111,  487 
Linehan  v.  State  (Ala.,  1897),  21 

So.  Rep.  497, 
Links  v.  State,  13  Lea  (Tenn.) 
701, 

State,  15  Lea  (Tenn.) 


Lipes  v 

125, 
Little  v.  Com.,  25  Gratt.  (Va.)  921, 
118,  238, 
Little  v.  People,  157  111.  153,        17 
Little  v.  Todd,  3  Rich.  (S.  Car.) 

91, 
Livar  v.  State,  26  Tex.  App.  115> 
Livingston  v.  Com.,  14  Gratt. (Va.) 

592, 
Livingston  v.  Kiersted,  10  Johns. 

362, 
Llewellyn's  Case,  13  Pa.  Co.  Ct. 

Rep.  126, 
Lockwood  v.  State,  26  S.  W.  Rep. 

200, 
Loder  v.  Whelpley,  111  N.  Y.  245, 
Loeffner  v.  State,  10  Ohio  St.  598, 

197, 
Logan  v.  State   (Tex.,   1896),   34 

S.  W.  Rep.  925, 
Logan  v.  United  States,  144  U.  S. 

263,  72,  257, 

Loggins  v.  State,  8  Tex.  App.  434, 

154, 
Lohman  v.  State,  81  Ind.  15, 
Long  v.  People,  135  111.  435, 
Long  v.  State,  86  Ala.  36,    89,  182, 
Long  v.  State,  11  Fla.  295, 
Long  v.  State,  12  Ga.  293,         420, 
Long  v.  State,  54  Ga.  564, 
Long  v.  State,  56  Ind.  182, 
Long  v.  State,  23  Neb.  33, 
Long  v.  State,  36  Tex.  6, 
Long  v.  State,  10  Tex.  App.  186, 
Long  v.  State,  13  Tex.  App.  211, 

157, 
Lord  Audley's  Case,  3  How.  St. 

Tr.  401, 
Lord  Marley's  Case,  6  How.  St. 

Tr.  170, 
Lossen  v.  State,  62  Ind.  437,     367, 
Lothrop  v.  Roberts,  16  Colo.  250, 
Lott  v.  State,  122  Ind.  393  , 
Louisville,  etc.,  Co.  v.  Falvey,  104 

Ind.  409, 
Love  v.  People,  160  111.  501, 
Lovell  v.  State,  12  Ind.  18, 
Lovett  v.  State,  30  Fla.  142, 
Lovett  v.  State,  60  Ga.  257,  81, 145, 
Lovett  v.  State,  80  Ga.  255, 
Low  v.  Mitchell,  18  Maine  372, 
Low  v.  State,  4  Maine  439,         37, 


391 

365 

65 

240 
,22 

309 
279 

394 

252 

279 

358 
221 

198 

354 

551 

155 
531 
329 
217 
352 
421 
585 

84 
101 
572 

54 

551 

232 

322 
368 
304 

545 

407 
436 
115 
17 
154 
121 
590 
253 


TABLE    OF   CJ 


liii 


354 
535 
323 
231 
280 
45 

62 

86 


168 
63 

431 

130 

119 
35 

48-1 


[References  <> 

Lowe  v.  State,  97  Ga.  792,        297,  468 
Lowrance  v.  st:ik',  4  Yerg.  (Tenn.) 

!-!■■>, 

Lowry  v.  Rainwater,  70  Mo.  L52, 

Lucas  v.  State,  96    Ala.  51, 

Lucas  v.  State,  23  Conn.  18, 

Lucas  v.  State,  27  Tex.  App.  322, 
Luck  v.  State,  ".Mi  1ml.  HI, 
Luco  v.  United  States,  23  How. 

I  r.  SO  515, 
Lucre  v.  State,  7  Baxter  (Tenn.) 

148, 
Lue  v.  Com.  (Kv.),  15  8.W.  Rep 

664,  356,  358 

Luera  v.  State  (Tex.),  32  S.  W. 

Rep.  898, 
Luke  v.  Calhoun  Co.,  52  Ala.  115, 
Luke  v.  State,  49  Ala.  30, 
Luker  v.  Com.  (Ky.,  1897),  5  S. 

W.  Rep.  354, 
Luml  v.  Inhabitants,  9  Cush. 

(Mass.)  36, 
Lung's  Case,  1  Conn.  428, 
Luttrell  v.  State,  85  Tenn.  232, 
Lvle  v.  State,  21  Tex.  App.  153, 

274,  305,  545 
Lynch  v.  State,  84  Ga.  726,  580 

Lynn  v.  Com.  (Kv.),  13  S.  W. 

Rep.  74,  474 

Lyons  v.  People,  137  111.  602,  17 

Lyons  v.  State,  52  Ind.  426,  406 

Lvtle  v.  State,  31  Ohio  St.  196,        208 


M 


Macdonnell,  In  re,  11  Blatchf.  C. 

C.  170,  556 

Mace  v.  State,  5S  Ark.  79,  531 

Mack  v.  State,  48  Wis.  271,  124 

Mackev  v.  Com.,  80  Kv.  345,  328 

Mackin  v.  People,  115  111.  312,  39 
Mackin  v.  State  (N.  J.,  1897),  36 

At!.  Rep.  1040,  193 

Maeklin  v.  Com.,  93  Ky.  294,  394 
Madden  v.  State  (Ind.,  1897),  47 

N.  E.  Rep.  220,  360 

Madden  v.  State,  1  Kan.  340,  379 
Madison  v.  State,  16  Tex.  App. 

441,  353 

Magee  v.  People,  139  111.  138,  299,  441 
Magennis  v.  Parkhurst,  3  Green 

Ch.  433,  522 

Magnay  v.  Burt,  5  Q.  B.  381,  314 
Maguire  v.  State,  47  Md.  485,  573,576 

Maher  v.  People,  10  Mich.  212,  31 
Maillet  v.  People,  42  Mich.  262, 

470,  475,  476 


/•«   to  Pages."] 

Mainard  v.  Reider,  2  Ind.  App. 
LIS, 

Maines  v.  State,  26  Tex.  App.  14, 
Malachi  v.  state,  89  Ala.  L34,    91, 
Mallorv  v.  Benjamin,  9  Bow.  Pr. 
R.  419, 

Mallorv  v.  State  (Tex.,  1886),  36 

S.  W.  Rep.  751, 
Malone  v.  state,  49  Ga.210,      17, 
Manaway  v.  State,  44  Ala.  375, 
Manchester,  In  re,5Cal.237,  558, 
Mangrum  v.  Cum.  (Kv.,  1897),  39 

S.  W.  Rep.  703, 
Mangum  v.  State,  15  Tex.  App. 

362, 
Mann  v.  State,  23  Fla.  610, 
Mann  v.  State,  34  Cal.  15, 
Mann  v.  State,  44  Tex.  App.  642, 
Manning  v.  State  (Tex.,  1897),  39 

S.  W.  Rep.  118,  425, 

Manning  v.  State,  79  Wis.  178, 
Maples  v.  State,  3  Heisk.  (Tenn.) 

408, 
Marable  v.  State,  89  Ga.  425,  384, 
Marcy  v.  Barnes,  16  Gray  161, 
Marion  v.  State,  16  Neb.  349,     82, 
Marion  v.  State,  20  Neb.  233,      47 
Marks  v.  State,  101  Ind.  353, 
Marler  v.  State,  67  Ala.  55, 

93,  320,  385, 
State,  7  Tex.  App. 


Marnoch  v 

269, 
Marshall  v 

Marshall  v 
Marshall  v 

273, 
Marshall  v 


R.  R.  Co.,  48  111.  475, 
State,  49  Ala.  21, 
State,  5  Tex.  App. 


State  (Tex.,  1893),  22 

S.  W.  Rep*. 878, 
Martin  v.  Anderson,  21  Ga.  301, 
Martin  v.  Com.,  93  Ky.  189, 
Martin  v.  Com.,  2  Leigh  745, 
Martin  v.  State,  90  Ala.  602, 
Martin  v.  State,  89  Ala.  115, 
Martin  v.  State,  104  Ala.  71,     360, 
Martin  v.  State,  32  Ark.  124,    523, 
Martin  v.  State,  5  Ind.  App.  453, 

419 
Martin  v.  State  (Tex.,  1897),  35 

S.W.  Rep.  976,  112, 

Martin  v.  State,  21  Tex.  App.  1, 

256, 
Martin  v.  State,  79  Wis.  165, 
Marts  v.  State,  26  Ohio  St.  162, 
Marx  v.  People,  63  Barb.  (N.  Y.) 

618, 
Mask  v.  State,  32  Miss.  405, 
Mason  v.  People,  26  N.  Y.  200, 
Mason  v.  State,  42  Ala.  532, 

108,  110, 


233 
373 
222 

493 

208 
490 
561 

193 

543 
262 

455 
237 

427 
147 

164 

584 
63 
302 
,  63 
597 

395 

397 
134 
407 

172 

439 

218 
384 
487 
176 
58 
365 
524 

390 

502 

257 

82 

387 

80 
235 
435 

112 


liv 


TABLE    OF    ('ASKS. 


[References  arc  h>  Pages."] 
Mason  v.  State,  29  Tex.  App.  24,     408 


Masons  v.  Hinds,  19  N.  Y.  Supp. 

996,  278 

MaBsey  v.  Colville,  45  N.  J.  L. 

11!!.'  316 

Massey  v.  State,  29  Tex.  App.  159,  341 
Masterson  v.  State,  144  Ind.  240, 

281,  526 
Matherly  v.  Com.  (Ky.,  1892),  19 

S.  W.  Rep.  977,  132 

Matliews  v.  Hoagland,  48  N.  J.  L. 

455,  220 
Mathews  v.  State,  19  Neb.  330, 

473,  474 
Matins  v.  Com.  (Ky.,  1890),  13 

S.  W.  Rep.  360,  457 

Mathis  v.  State,  34  Tex.  Cr.  Rep. 

39,  391 

Matthews  v.  People,  6  Colo.  App. 

456,  82 
Matthews  v.  State,  96  Ala.  62, 

321,  325,  326 
Mattox  v.  United  States,  146  U.  S. 

140,  139,  241 

Maxwell  v.  Hardy,  8  Pick.  (Mass.) 

560,  600 

Mav  v.  People,  8  Colo.  210,  386 

May  v.  Shumway,  16  Gray  598,  317 
May  v.  State,  14  Ohio  461,  494 

May  v.  State,  33 Tex.  Cr.  Rep.  74,  77 
Mayberry  v.  State,  107  A  la.  64,  542 
Mayer  v.  People,  80  N.  Y.  364,  502 
Mayes  v.  State,  64  Miss.  329,  121, 394 
Mayes  v.  State,  33  Tex.  Cr.  Rep. 

33,  292,  368 

Mayfield  v.  State,  110  Ind.  591,  390 
Maynard  v.  People,  135  III.  416,  156 
Mayo  v.  State,  7  Tex.  App.  342,  467 
Mavor,  etc.,  v.  Caldwell,  81  Ga. 

76,  252 

McAdams  v.  State,  25  Ark.  405,  381 
McAdory  v.  State,  62  Ala.  154, 

144,  164,  174 
McAfee  v.  State,  85  Ga.  438,  54 
McAleer  v.  State,  46  Neb.  116,  348 
McArthur  v.  State,  59  Ark.  431, 

27,  291,  427 
McBean  v.  State,  83  Wis.  206,  242 
McBrayerv.  State  (Tex.,  1897), 

34  S.  W.  Rep.  114,  376 

McBride  v.  People,  5  Colo.  App. 

.91,  134,  136,  143,  148,  396 

McCabe,  Ex  parte,  46  Fed.  Rep. 

363,  554 

McCann  v.  People,  3  Park.  Cr. 

Rep.  272,  397 

McCann  v.  State,  21  Miss.  471, 

145,  148,  383 


McCartney  v.  State,  3  Ind.  353, 

487,  497 
McCarty  v.  People,  51  111.  231, 

103,  391 
McClackey  v.  State,  5  Tex.  App. 

320,  202,  203 

MeClain  v.  Com.,  110  Pa.  St.  263, 

175,  261 
McClellan  v.  State,  66  Wis.  335,  595 
McClellan  v.  State,  32  Ark.  609,  484 
McClerkin  v.  State,  20  Fla.  879. 

525,  527 
McCloskey  v.  People,  5  Park.  Cr. 

Rep.  299,  420 

McClure  v.  Com.,  81  Ky.  448,  265 

McClure  v.  Com.,  86  Pa.  St.  353,  485 
McCullum  v.  State,  29  Tex.  App. 

162,  321 

McCombs  v.  State,  8  Ohio  St.  643,  480 
McConnell  v.  State  (Tex.,  1897), 

18  S.  W.  Rep.  645,  94 

McCook  v.  State,  91  Ga.  740,  206 

McCorkle  v.  State,  1  Cold.  (Tenn.) 

333,  504 

McCourt  v.  People,  64  N.  Y.  583,  435 
McCoy  v.  People,  65  111.  439,  597 

McCue  v.  State,  78  Pa.  St,  185,  384 
McCullar  v.  State  (Tex.,  1896), 

36  S.  W.  Rep.  585,  452 

McCulloch  v.  State,  48  Ind.  109,  11 
McCully's  Case,  2  Lew.  C.  C.  272,  44 
McDaniel  v.  State,  97  Ala.  14,  78 

McDaniel  v.  State  (Ga.,  1897,) 

27  S.    E.    Rep.  158,  391 

McDaniel  v.  State,  16  Miss-401,  391 
McDonald  v.  Com.,  86  Ky.  10,  97,  99 
McDonald  v.  Com.,  30  W.  N.  C. 

166,  592 

McDonald  v.  State,  80  Wis.  407,  29 
McDonel  v.  State,  90  Ind.  320,  60 

McDonnell  v.  State,  58  Ark.  242, 

484,  485 
McDongal  v.  State,  88  Ind.  24,  197 
McDowell  v.  State,  68  Miss.  348,  353 
McDowell  v.  State  (Miss.,  1897), 

20  So.  Rep.  864,  359 

McDermott  v.  State,  89  Ind.  187, 

328,  381 
McFadden  v.  Reynolds  (Pa.  St., 

1889),  11  Atl.  Rep.  638,  305 

McFadden  v.  State,  28  Tex.  App. 

241,  84 

McGarr  v.  State,  75  Ga.  155,  490 

McGary  v.  People,  45  N.  Y.  153,  43 
McGee  v.  State,  29  Tex.  App.  596,  256 
McGinnis  v.  State,  24  Ind.  500, 

357,  500 
McGlosson  v.  State  (Tex.),  40  S. 

W.  Rep.  50,  111,  503 


TABLE    OF    CASES. 


lv 


337 
435 

552 

320 
471 

271 


148 
123 


[Beferences  ai 

M<<  lowan  v.  McDonald,  111  Cal. 

57,  268,  269 

McGowan  v.  State,9  Yerg.(Tenn. ) 

I  j  |j ; 

McGrath  v.  State,  25  Neb.  780, 
McGraw  v.  State  (Kv.,  1893),  20 

S.  W.  Rep.  7«», 
McGrewv.  State,  13  Tex.  App. 

340, 
McGuff  v.  State,  88  Ala.  147, 
McGuire  v.  Lawrence  Mfg.  Co., 

L56  .Mass.  324, 
McGuire  v.  People,  44  Mich.  286, 

20,  177,  254 
Mcllvain  v.  State,  80  Ind.  69,  595 

Mclntire  v.  Slate  (Tex.,  1897),  33 

S.  W.  Rep.  347, 
McKee  v.  People,  36  N.  Y.  113, 
McKeev.  State,  111  Ind.  378, 

504,  549,  551 
McKenna,  In  re,  47  Kan.  734,  73 

McKenzie  v.  State,  24  Ark.  636, 

86,  87,  197 
McKenzie  v.  State,  32  Tex.  Cr. 

Rep.  ACS,  550 

McKeone  v.  State,  6  Colo.  346,  76,  80 
McKinny  v.  State,  29  Fla.  565,  467 
McKissick  v.  State,  26  Tex.  App. 

673,  280 

McKleroy  v.  State,  77  Ala.  95,  20 

McLain  v.  Com.,  99  Pa.  St.  86, 

105,  188,  321.  322,  398 
McLain  v.  State,  18  Neb.  154,  171 

McLean  v.  State,  16  Ala.  672,  130,  277 
McLellan  v.  Richardson,  13  Me. 

82, 
McLeod  v.  State,  35  Ala.  395, 
McLeod  v.  State,  31  Tex.  Cr.  Rep. 

331,  197 

McMahan  v.  State,  29  Tex.  App. 

348, 
McManus  v.  Freeman,  2  Pa.  Dist, 

Rep.  144, 
McMath  v.  State,  55  Ga.  303, 

466,  474, 
McMeen    v.   Com.,   114    Pa.    St. 

300,  397 

McMurrin  v.  Rigby,  80  Iowa  322,  473 
McNaghten's   Case,  10  CI.  &  F. 

200, 
McNair  v.  State,  53  Ala.  453, 
McNamara  v.  State  (Colo.,  1897), 

48Pac.  Rep.  541, 
McNealv  v.  People,  17  Fla.  198, 
McNeil  V.  State,  29  Tex.  App.  48,  244 
McPherson  v.  State,  23  Ga.  478,      139 
McPhun,  In  re,  30  Fed.  Rep.  58, 

557,  566 
McQueen  v.  State,  94  Ala.  50,  130,  138 


239 
115 

203 

369 

217 
481 


193 
477 

420 
329 


r  h>  Pages."] 

McQueen  v.  State,  108  Ala.  54,  365 
McQueen  v.  State,  82  Ind.  72, 

95,  100,  101 
McQueen  v.  State,  15  s.  W.  Rep. 

824,  L32 

McQuirk  v.  State,  84  Ala.  435,  480 
McSwean  v.  state  (Ala.,  l.s'.i?),  21 

S<>.  Rep.  211,  100,  101,  108 

McTyler  v.  State,  91  Ga.  254,  242,  293 
McVey    v.    Slate,    23  Tex.    App. 

659,  580 
Mead  v.  State,  53  N.  J.  L.  601,  490 
Means  v.  State,  10  Tex.  App.  16,  313 
Medrano   v.   State,  32  Tex.   Cr. 

Rep.  214,  460 

Median  v.  State,  46  N.  J.  L.  355,  524 
Meeks  v.   Kitchen,   32  Tex.  Cr. 

Rep.  420,  528 

Mehan  v.  State,  7  Wis.  565,  34 

Meister  v.  People,  31  Mich.  99, 

111,  431 
Mellen,    In   re,   63  Hun    (N.  Y.) 

632,  219 

Mercer  v.  State,  17 Tex.  App.  452,  85 
Mercer  v.  State,  17  Ga.  146,  179 

Merrill  v.  State,  58  Miss.  65,  137,  142 
Merrittv.  Campbell,  79  N.  Y.  625,  493 
Merritt  v.  State  (Miss.,  1889),   5 

So.  Rep.  386,  510 

Merriwether  v.  State,  81  Ala.  74,  231 
Mershon  v.  State,  51  Ind.  14,  291 

Mesa  v.  State.  17  Tex.  App.  395,  453 
Messer  v.  State  (Tex.,  1897),  40 

S.  W.  Rep.  488,  512 

Methard  v.  State,  19  Ohio  St.  363,  441 
Mettler  v.   People,   36   111.   App. 

324  370 

Metz  v.  State,  46  Neb.  547,  82,  441 
Metzger,  In  re,  5  How.   (U.  S.) 

176  555 

Meur'er  v.  State,  129  Ind.  587,  580,  584 
Merer  v.  Ins.  Co.,  40  N.  Y.  Supp. 

419,  226 

Meyer  v.  State  (N.  J.,  1897),  36 

Atl.  Rep.  483,  108 

Meyers  v.  Com.,  83  Pa.  St.  131,  197 
Meyers,  Ex  parte,  33  Tex.  Cr.  Rep. 

204,  129 

Meyers  v.  State,  14  Tex.  App.  35,  376 
Mevncke  v.  State,  68  Ind.  401,  597 
Mieheaux  v.  State,  30  Tex.  App. 

660,  352 
Middaugh  v.  State,  103  Ind.  78,  532 
Middlebrook  v.  State,  43  Conn. 

257,  520 

Miers  v.  State  (Tex.),  29  S.  W. 

Rep.  1074,  386 

Milan  v.  State,  24  Ark.  346,  215,  218 
Miles  v.  State,  93  Ga.  117,        187,  188 


lvi 


TABLE    OF    CASES. 


[References  are  to  Pages. 


Miles  v.  United  States,  103  U.  S. 

.'504,  13,  17,  459,  460 

Miller  v.  Anderson,  43  Ohio  St. 

473,  592 

Miller  v.  Com.,  78  Ky.  15,  500 

Miller  v.  People,  39  111.457, 

184,  190,  191 
Miller  v.  Railroad  Co.,  89  Iowa 

567,  275 

Miller  v.  State,  48  Ala.  122,  531 

Miller  v.  State,  107  Ala.  401,  339 

Miller  v.  State,  110  Ala.  69, 

150,  588,  589,  595 
Miller  v.  State,  110  Ala.  674,  373 

Miller  v.  State,  15  Fla.  575,  265 

Miller  v.  State,  91  Ga.  186,  437 

Miller  v.  State  (Ga.,  1897),  25 

S.  W.  Rep.  366,  298 

Miller  v.  State,  9  Ind.  340,  332 

Miller  v.  State,  57  Ind.  405,  488 

Miller  v.  State,  73  Ind.  88,  504 

Miller  v.  State,  68  Miss.  221,  156 

Miller  v.  State,  18  Tex.  App.  232,  147 
Miller  v.  State,  28  Tex.  App.  445,  439 
Miller  v.  State,  31  Tex.  Cr.  App. 

609,  118 

Millett  v.  Baker,  42  Barb.  (N.  Y.) 

215,  587 

Mills  v.  Com.,  93  Va.  815, 

452,  453,  455 
Mills  v.  State,  20  Ala.  86,  533 

Mills  v.  United  States,  164  U.  S. 

644,  466 

Milne's  Case,  2  East  C.  L.  602,  357 
Mimnis  v.  State,  16  Ohio  St.  223,  394 
Miner  v.  People,  58  111.  59,  444,  462 
Ming  v.  Foote,  9  Mont.  201,  63 

Minich  v.  State,  8  Colo.  454,  20 

Mink  v.  State,  60  Wis.  583,       592,  593 
Minneapolis  Mill  Co.  v.  Minne- 
apolis, etc.,  Co.,  51  Minn.  304,      321 
Minters  v.  People,  139  111.  363, 

303,  304 
Miott  v.  Consumers'  Ice  Co.,  52 

How.  Pr.  (N.  Y.)  244,  312 

Misseldine  v.  State,  21  Tex.  App. 

335  356 

Mitchell  v.  Com.,  78  Kv.  204,  409,  459 
Mitchell  v.  Com.  (Ky.,  1892),  14 

S.  W.  Rep.  489,  134 

Mitchell  v.  State,  58  Ala.  417, 

378   379 
Mitchell  v.  State,  94  Ala.  68, 

58,  72,  292,  293,  306 
Mitchell  v.  State,  71  Ga.  128,  129,  143 
Mitchell  v.  State,  34  Tex.  Cr. 

Rep.  311,  242 

Mixon  v.  State,  88  Ga.  203,  395 

Mixon  v.  State,  55  Miss.  525,  20 


Mixon  v.  State  (Tex.,  1895),  31  S. 

W.  Rep.  408,  109 

Mi/ell  v.  State  (Fla.,  1897),  20  So. 

Rep.  769,  353,  355,  358 

Mockabee  v.  Com.,  78  Ky.  380, 

130,  132,  142 
Moeck  v.  People,  100  111.  242,  136 

Moffit  v.  State,  2  Humph.  (Tenn.) 

99  235  236 

Moncrief  v.  Ely,  19  Wend.  405,  '  586 
Mondragon  v.  State,  33  Tex.  480,  362 
Monroe  v.  State,  5  Ga.  85,  124 

Monroe,  In  re,  20  N.  Y.  Supp.  82,  217 
Montag  v.  People,  141  111.  75,  197 

Montgomery  v.  Com.  (Ky.),  30  S. 

W.  Rep.  602,  98 

Montgomery  v.  Knox,  23  Fla.  595,  294 
Montgomery  v.  State,  80  Ind.  388, 

3  Crim.  Law  Mag.  523,  134 

Montgomery  v.  State,  12  Tex. 

App.  323,  485 

Montgomery  v.  State,  11  Ohio  424,  323 
Montee  v.  Com.,  3  J.  J.  Marsh. 

(Ky.)  132,  337,  338 

Moody  v.  People,  20  111.  310,  328 

Moody  v.  Rowell,  17  Pick.  (Mass.) 

490,  262,  276 

Moon  v.  State,  68  Ga.  687,  63 

Mooney  v.  State,  33  Ala.  419,  207 

Moore  v.  Com.,  8  Pa.  St.  260,  504 

Moore  v.  Green,  73  N.  Car.  394,  317 
Moore  v.  Missouri,  159  U.  S.  673,  571 
Moore  v.  People,  108  111.  484,  273 

Moore  v.  State,  77  Ga.  759,  533 

Moore  v.  State,  79  Ga.  498,  254 

Moore  v.  State,  17  Ohio  St.  521,  466 
Moore  v.  State,  96  Tenn.  209, 

133,  154,  286,  582 

Moore  v.  State  (Tex.,  1897),  33  S. 

W.  Rep.  971,  167 

Moore  v.  State  (Tex.,  1897),  37  S. 

W.  Rep.  747,  439 

Moore  v.  State  (Tex.,  1897),  40  S. 

W.  Rep.  287,  414 

Moore  v.  United  States,  91  U.  S. 

375,  493 

Moore  v.  United  States,  150  U.  S. 

57,  112,  113 

Moore's  Case,  2  Leigh  (Va.)  701, 

356,  357 
Moran  v.  People  (111.,  1897),  45 

N.  E.  Rep.  230,  121,  294 

Moran  v.  People,  25  Mich.  356,  477 
Morehouse  v.  State,  35  Neb.  643,  351 
Morelock  v.  State,  90  Tenn.  528,  140 
Morgan,  Ex  parte,  20  Fed.  Rep. 

298,     '  557,  561 

Morgan  v.  State,  42  Ala.  131,  504 


TABLE    OF    CASES. 


lvii 


[References  ar 

Morgan  v.  State  (Neb.),  71  N.  W. 

Rep.  788,  10 

Morgan  v.  State,  48  Ohio  St.  371, 

339,  341 
Morgan  v.  State,   25  Tex.   App. 

513,  441 

Morgan's  Case,  1  Mood.  &  R.  134,  493 
Moriarity  v.  State,  62  Miss  654, 

387,  388 
Morris  v.  Davis,  5  C.  &  F.  163,  591 
Morris  v.  Morris,  119  Ind.  343,  221 
Morris  v.  N.  Y.,  O.  &  W.  R.   R. 

Co.,  148  N.  Y.  88,  227 

Morris  v.  State,  84  Ala.  446,  354 

Morris  v.  State,  101  Ind.  560,  599 

Morris  v.  State,  30  Tex.  App.  95, 

109,  382,  383,  384 
Morrison  v.  Lennard,  3  C.  &  P. 

117,  253 

Morrow  v.  State,  48  Ind.  432,  124 

Morton  v.  State,  91  Tenn.  437,  126 
Mose  v.  State,  35  Ala.  421,  137 

Moss  v.  State,  17  Ark.  327,  86 

Motherly  v.  Com.  (Ky.,  1892),  19 

S.  W.  Rep.  977,  136 

Mount  v.  Com.,  2  Duv.,  J.  (Ky.), 

93,  573 

Move  v.  State,  65  Ga.  754,  29,  358 

Mulford  v.  People,  139  111.  586, 

346,  347 
Mulreed  v.  State,  107  Ind.  62,  281 

M linkers  v.  State,  87  Ala.  94,  450,  452 
Murdock's  Case,  2  Bland.  461,  521 
Murdock  v.  State,  68  Ala.  567,  147 
Murphy  v.  Com.,  23  Gratt.  (Va.) 

960,  233 

Murphy  v.  People,  9  Colo.  435, 

105,  381 
Murphy  v.  People,  63  N.  Y.  590, 

163,  172,  175,  385,  400 
Murphy  v.  Spence,  9  Gray  (Mass.) 

339,  600 

Murphy  v.  State,  63  Ala.  1,  172 

Murphy  v.  State,  108  Ala.  10, 

100,  172,  302 
Murphy  v.  State,  120  Ind.  115,  467 
Murphy  v.  State  (Tex.,  1896),  35 

S.  W.  Rep.  174,  396 

Murray  v.  G.  W.  Ins.  Co.,  72 

Hun  (N.  Y.)  282,  272 

Murray  v.  State,  1  Tex.  App.  417,  330 
Murtagh's  Case,  1  Ashm.  272,  462 

Moscoe  v.  Com.,  87  Va.  460,  395 

Musgrave  v.  S.,  133  Ind.  297,  507 

.Mussel  Slough  Case,  5  Fed.  Rep. 

680,  549 

Musser  v.  State,  21  Ohio  St.  353,  588 
Mutual  Ins.  Co.  v.  Selbv,  72  Fed. 

Rep.  980,  219 


•e  to  Pages.'] 

M  vers  v.  Com.,  90  Va.  359,  32 

Myers  v.  Stafford,  114  N.  Car. 

689,  587 

Myers  v.  State,  84  Ala.  11,  471,  172 
Myers  v-  State,  07  (ia.7<i,  306,  43"i 

Myers  v.  State,  92  Ind.  390,  '_'  1 1 

Myers  v.  State,  3  Sneed  (Tenn.) 

98,  531 

Mvers  v.  State  (Neb.,  1897),  71  S. 

W.  Rep.  33,  479 

Mynatt  v.  Hudson,  66  Tex.  66,        291 

N 

National  Trust  Co.  v.  Gleason, 

77  N.  Y.  400,  258 

Navarro  v.  State,  24  Tex.  App. 

378,  232,  262 

Neal's  Case,  22  Gratt.  (Va.)  917,  531 
Neal  v.  Patten,  47  Ga.  73,  222 

Neel  v.  State,  4  Eng.  (Ark.)  259,  522 
Neelv  v.  State,  32  Tex.  Cr.  Rep.  | 

370,  424 

Nehr  v.  State,  35  Neb.  638,  369 

Neiderluck  v.  State,  21  Tex.  App. 

320,  163 

Neill  v.  State,  79  Ga.  779,  582 

Nelms  v.  State,  84  Ga.  466,  464 

Nelms  v.  State,  58  Miss.  362,  328 

Nelson  v.  State,  32  Fla.  244,  103,  292 
Nelson  v.  State,  2  Swan  (Tenn.) 

237,  277 

Nelson  v.  State  (Tex.,  1896),  32 

S.  W.  Rep.  900,  359 

Nelson  v.  State,  1  Tex.  App.  41,  375 
Neubrandt  v.  State,  53  Wis.  89, 

441,  584 
Newberry  v.  Robinson,  36  Fed. 

Rep.  841,  568 

Newcomb  v.  Com.,  37  Miss.  383,  395 
Newcomb  v.  State,  37  Miss.  383, 

274,  395 
Newell  v.  State,  109  Ala.  5,  542 

New  England  Mon.  Co.  v.  John- 
son, 29  W.  N.  C.  117,  50 
Newman  v.  People  (Colo.,  1897), 

47  Pac.  Rep.  278,  513,  515 

Newman  v.  People,  63  Barb. 

CN.  Y.)  630,  77 

Newport  v.  State,  140  Ind.  299,  74 
Newsom  v.  State,  107  Ala.  133,  101 
Newton  v.  State,  92  Ala.  33,  391 

Newton  v.  State,  21  Fla.  53,  372 

Newton  v.  State  (Miss.),  12  So. 

Rep.  560,  341 

Nicholas  v.  Com.,  91  Va.  741, 

375,  396,  448 
Nichols  v.  Com.,  11  Bush  (Ky.) 

595,  332,  391 


lviii 


TABLE    OF    CASES. 


[References  are  to  Pages.'] 


Nichols  v.  People,  23  Hun  (NY.) 

165,  388 

Nicholson  v.  State,  72  Ala.  176,  595 
Nicholson  v.  State,  38  Md.  140, 

160,  161 
Nixon  v.  Perry,  77  Ga.  530,  587 

Nobles  v.  State  (Ga.,  1897),  26  S. 

E.  Rep.  64,  180 

Noftsinger  v.  State,  7  Tex.  App. 

301,  147,  383 

Norfleet  v.  Com.  (Ky.,  1896),  33 S. 

W.  Rep.  938,  119 

Nolen  v.  State,  8  Tex.  App.  585,  161 
Nolen's  Case,  14  Tex.  App.  474, 

154,  163,  176 
Norris  v.  Beach,  2  Johns.  (N.  Y.) 

29,  317 

Norris  v.  State,  25  Ohio  St.  217,  507 
North  v.  People,  139  111.  81, 

58,  129,  137,  140,  329 
North  Carolina  v.  Vandeford,  35 

Fed.  Rep.  282,  367 

Norton  v.  State,  72  Miss.  128,  455 

Noyes  v.  State,  41  N.  J.  L.  418,  88 

Nuchols  v.  State,  109  Ala.  2,  533 

Nuckolls  v.  Com.,  32  Gratt.  884,  531 
Nugent  v.  State,  18  Ala.  421,  473 

Nuzum  v.  State,  88  Ind.  599,  322 

0 

O'Blenis  v.  State,  47  N.  J.  L.  279, 

479,  480 
O'Brian  v.  Com.,  6  Bush  (Ky.) 

563,  '      320,  322 

O'Brien  v.  Com.,  89  Ky.  354,  332 

O'Brien  v.  People,  36  N.  Y.  276,  202 
O'Brien  v.  People  48  Barb.  (N.Y.) 

274,  196 

O'Brien  v.  State,  125  Ind.  38,  67 

O'Connell  v.  People,  87  N.  Y.  377, 

31,  196 
Oder  v.  State,  26  Fla.  520,  532 

Ogletree  v.  State,  28  Ala.  693, 

24,  193,  196 
Oldham  v.  State,  5  Gill  (Md.)  90,  587 
Oleson  v.  State,  11  Neb.  276,  468,  469 
Olive  v.  State,  11  Neb.  1,  90 

Oliver  v.  Com.,  101  Pa.  St.  215,  27,  455 
Oliver  v.  State,  17  Ark.  508,  510,  511 
Oliver  v.  State,  94  Ga.  83,  51 

Olson  v.  Peterson,  33  Neb.  358, 

596,  598 
O'Mara  v.  Com.,  75  Pa.  St.  424,  398 
Omer  v.  State,  95  Ky.  353,  97 

Omichund  v.  Barker,  Willes  547, 

248,  249 
O'Neal  v.  State,  32  Tex.  Cr.  App. 

42,  543,  544,  545 


Oneale  v.  Com.,  17  Gratt.  (Va.) 

582,  462 
O'Neil  v.  State,  48  Ga.  66,  20 
O'Neill  v.  State,  85  Ga.  383,  454 
Orman  v.  State,  22  Tex.  App.  604,  220 
Ormsby  v.  People,  53  N.  Y.  472,  95 
Ornelaz  v.  Ruiz,  1(11  U.  S.  502,  559 
Orser  v.  Orser,  24  N.  Y.  51,  289 
Orr  v.  State,  107  Ala.  35,  360 
Osborn  v.  Com.  (Ky.,  1893),  20 

S.  W.  Rep.  223,     '  169 

Osborn  v.  State,  52  Ind.  526,  408 
Osborne  v.  People,  2  Park.  Cr.  Rep. 

583,  115 
Oteiza,  In  re,  136  U.  S.  330,  557 
Ottawa,  The,  3  Wall  (U.  S.)  268,  270 
Osgood  v.  State,  64  Wis.  472,  476,  477 
Overlook  v.  Hall,  81  Me.  348,  590 
Oviatt  v.  State,  19  Ohio  St.  573,  369 
Owens  v.  State,  94  Ala.  97,  444,  446 
Owens  v.  State,  67  Md.  307.  267 
Owens  v.  State,  63  Miss.  450,  74 
Owensby  v.  State,  82  Ala.  63,  148, 179 
Owings  v.  Hull,  9  Peters  (U.  S.) 

607,  568 

Ozburn  v.  State,  87  Ga.  173,  103 


Pace  v.  Alabama,  106  U.  S.  583,  571 
Pace  v.  Com.  (Ky.,  1897),  37  S. 

W.  Rep.  948,    '  331,  396 

Pace  v.  Com.,  89  Kv.  204,  330 

Pace  v.  State  (Tex.),  20  S.  W. 

Rep.  762,  179 

Pace  v.  State  (Tex.,  1894),  31  S. 

W.  Rep.  173,  360 

Padfield  v.  State,  146  111.  660,  20 

Page  v.  Com.,  27  Gratt.  (Va.)  954,  245 
Page  v.  Dennison,  29  Pa.  St.  420,  592 
Page  v.  State,  3  Heisk.  (Tenn.) 

198,  543 

Painter  v.  People,  147  111.  444, 

19,  108,  112,  186 
Palmer  v.  People,  138  111.  356,  395 
Palmer  v.  State,  45  Ind.  388,  368 

Palmer  v.  State,  136  Ind.  393,  161 

Panton  v.  People,  114  111.  505,  73 

Parker  v.  Com.,  96  Ky.  212,  396 

Parker  v.  People,  97  111.  32,  486 

Parker  v.  State,  39  Ala.  365,  44,  356 
Parker  v.  State,  110  Ala.  688,  358 

Parker  v.  State,  136  Ind.  284, 

20,  121,  190 
Parker  v.  State,  135  Ind.  534,  78 

Parker  v.  State,  67  Md.  320,  468,  469 
Parmelee  v.  People,  8  Hun  (N.Y.) 

623,  501 

Parris  v.  State,  76  111.  274,  370 


TABLE    OF    CASES. 


lix 


[References  are  to  Pages. ] 


Parrish  v.  State,  14  Neb.  60,  337 

Parshall  v.  Railroad  Co.,  66  Hun 

(N.  Y.)  633,  64 

Parsons  v.  State,  81  Ala.  577,  195 

Partain  v.  State,  22  Tex.  App.  100, 

529 

Partee  v.  State,  67  Ga.  570,  94 

Paschal  v.  State,  89  Ga.  303,  263 

Pascoe's  Case,  1  Den.  C.  C.  456,  519 
Patchin  v.  Brooklyn,  2  Wend. 

(N.  Y.)  377,  284 

Patterson  v.  State,  86  Ga.  70,  202,  2(55 
Patton  v.  State,  6  Ohio  St.  467,  552 
Paul  v.  Paul,  37  N.  J.  Eq.  23,  293 

Paul  v.  State,  65  Ga.  152,  181 

Pauli  v.  Com.,  89  Pa.  St.  432,  98 

Paulk  v.  State,  52  Ala.  427,  587,  591 
Pavnev.  Corn.,  1  Mete   (Ky  )  370, 

387 
Pavne  v.  State,  60  Ala.  80,  294,  389 
Payne  v.  State,  21  Tex.  App.  184,  442 
Payton  v.  State,  93  Ga.  Ill,  369 

Peak  v.  State,  50  N.  J.  L.  179, 

129,  130,  133 
Pearce  v.  State,  40  Ala.  720,  111 

Pearson  v.  State,  55  Ga  659,  496 

Pearv  v.  Com.,  3  Gratt.  (Va.)  632,  251 
Pease  v.  State,  91  Ga.  18,  584 

Peck  v.  Parchen,  52  Iowa  46,  53 

Peck  v.  State,  86  Tenn.  259,  81 

Peek  v.  Boone,  90  Ga.  76,  216 

Peete  v.  State,  2  Lea  (Tenn.)  513,  496 
Pefferling  v.  State,  40  Tex.  486,  468 
Pence  v. "State,  110  Ind.  95,  352,  353 
Pendrell  v.  Pendrell,  2  Stra.  925,  591 
Pennsylvania  v.  Bell,  Add.  156,  334 
Pennsylvania  v.  McFall,  Add. 

255,  334 

Pennsylvania  Co.  v.  Newmeyer, 

129  Ind.  401,  272 

Pentecost  v.  State,  107  Ala.  81,  292 
Penrod  v.  People,  89  111.  150,  377 

People  v.  Abbot,  19  Wend.  (N.  Y.) 

192,  479 

People  v.  Abbott,  97  Mich.  484, 

292,  479 

People     v.     Abbott,     19    Wend. 

(N.  Y.)  192,  477 

People  v.  Adams,  3  Denio  190,  507 

People  v.  Ah  Chov,  1  Tdaho  317,  150 

People  v.  Ah  Fat,*48  Cal.  61 ,  299 

People  v.  Ah  Fook,  62  Cal.  493,  513 

People  v.  Ah  Lee,  60  Cal.  85,  120,  122 
People  v.  Ah  Lee  Chuck,  66  Cal 

662,  274 

People  v.  Ah  Sam,  41  Cal.  645,  493 

People  v.  Ah  Sing,  51  Cal.  372,  17 

People  v.  Ah  Sing,  59  Cal.  400,  441 


People  v.  Ah  Teung,  92  Cal.  421, 

524, 
People  v.  Ah  Woo,  28  Cal.  205, 
People  v.  Ah  Ying,  42  Cal.  18, 
People  v.  Ah  Yute,  54  Cal.  89, 
People  v.  Ah  Yute,  56  Cal.  119, 
People  v.  Aiken,  66  Mich.  460, 

10,  412, 
People  v.  Altman,  147  N.  Y.  473, 


People 
People 
People 
People 

123, 
People 
People 

Pac. 
People 
People 
People 

People 

People 

200, 


v.  Alviso,  55  Cal.  230, 
v.  Anderson.  39  Cal.  703, 
v.  Anderson,  53  Mich.  60, 
v.   Arensburg,   105  N.  Y. 

v.  Armstrong,  114  Cal.  570, 
v.  Arnold  (Cal.,  1897),  48 
Rep.  803, 

v.  Arnold,  43  Mich.  303, 
v.  Arnold,  46  Mich.  268, 
v.  Ashe,  44  Cal.  298, 

95,  100, 
v.  Atkinson,  40  Cal.  284, 
v.Babcock,  7  Johns.(N.Y.) 


People   v.    Badgley,     16     Wend. 

(N.  Y.)  53, 
People  v.  Baird,  104  Cal.  462, 
People  v.  Baker,  3  Abb.  Pr  42, 
People   v.    Baker,    10    How.    Pr. 

(N.  Y.)  567. 
People  v.  Baker,  96  N.  Y.  3-10, 

501, 
People  v.  Baker,  100  Cal.  188, 
People  v.  Baldwin  (Cal.,  1897),  49 

Pac.  Rep.  186,  472, 

People  v.  Barker,  114  Cal.  617, 
People  v.  Barker,  60  Mich.  277, 

161, 
People  v.  Barnev,  114  Cal.  554, 
People  v.  Barrv,*94  Cal.  481, 
People  v.  Bawden,  90  Cal.  195, 

198, 
People  v.  Beach,  87  N.  Y.  508, 
People  v.  Beck  with,  108  N.  Y.  67, 
People  v.  Beevers,  99  Cab  286, 
People  v.  Belencia,  21  Cal.  544, 
People  v.  Bell,  49  Cal.  485,       101, 
People  v.  Bemmerlv,  87  Cal.  117, 

131. 
People  v.  Ben  net,  37  N.  Y.  117, 
People  v.  Bennett,  39  Mich.  208. 
People  v.  Bennett,  49  N.  Y.  137, 
People  v.  Benoit,  97  Cal.  249, 
People  v.  Benson,  6  Cal    221, 
People  v.  Beverlv,  66  N.  W.  Rep. 

(Mich.)  379,  136, 

People  v.  Bezv,  67  Cal.  223, 
People  v.  Bibbv,  91  Cal.  470, 


525 
489 
205 
157 
325 

414 

489 

11 
387 
328 

539 
43 

77 
146 
552 

101 

217 

499 

92 
108 
310 

40 

505 
485 

475 
92 

373 

468 
436 

199 

139 

11 

459 

208 
398 

141 
•179 

4-1(1 
343 
458 
480 

141 
392 

486 


lx 


TABLE    OF    CASKS. 


[lieferences  at 

People  v.  Bidleman,  104  Cal.  608, 

109,  111,  347,  348 
People  v.  Bielsehofskv,  3  Hun 

(N.  Y.)  40,  502 

People  v.  Bill,  10  John.  (N.  Y.)  95, 

8(3,  87 
People  v.  Blackwell,  27  Cal.  65,  274 
People  v.  Blake,  65  Cal.  275,  207 

People  v.  Blakeley,  4  Park.  Crim. 

Rep.  176,  220 

People  v.  Blanchard,  90  N.  Y.  314, 

502,  503 
People  v.  Block,  15  N.  Y.  Supp. 

229,  360 

People  v.  Block,  60  Hun  (N.  Y.) 

583,  434 

Peeple  v.  Bodine,  1  Denio  (N.  Y.) 

281,  95 

People  v  Boggs,  20  Cal.  432,  280 

People  v.  Bolanger,  71  Cal.  17,  61,  86 
People  v.  Bonney,  19  Cal.  426, 

281,  282,  283 
People  v.  Borgetto,  99  Mich.  336,  179 
People  v.  Bosquet  (Cal.),  47  Pac. 

Rep.  879,  294 

People  v.  Bosworth,  64  Hun 

(N.  Y.)72,  571 

People  v.  Bowen,  43  Cal.  439,  256 

People  v.  Bowen,  49  Cal.  654,  108,  476 
People  v.  Boyle  (Cal.,  1897),  48 

Pac.  Rep.  800,  422 

People  v.  Bradner,  107  N.  Y.  1,  579 
People  v.  Bransby,  32  N.  Y.  525,  477 
People  v.  Brewer,  27  Mich.  134, 

407,  454,  456 
People  v.  Brickner,  8  N.  Y.  Cr. 

Rep.  217,  36 

People  v.  Brings,  60  How.  Pr. 

(N.  Y.)  17,    ■  37,239 

People  v.  Brigham,  2  Mich.  550,  489 
People  v.  Brooks,  101  Mich.  98,  28 
People  v.  Brooks,  131  N.  Y.  321, 

274,  306 

People  v.  Broughton,  49  Mich. 

339,  445 

People  v.  Brow,  90  Hun  (N.  Y.) 

509,  261,  340 

People  v.  Brower,  7  N.  Y.  Cr.  Rep. 

292,  228 

People  v.  Brown,  46  Cal.  102,  330 

People  v.  Brown,  53  Cal.  66,  83 

People  v.  Brown,  54  Cal.  243,  332 

People  v.  Brown,  53  Mich.  531,  470 
People  v.  Brown,  6  Cow.  (N.  Y.) 

41,  521 

People  v.  Brown,  46  Hun  (N.  Y.) 

320,  315 

People  v.  Brown,  72  N.  Y.  571, 

74,  77,  78,  491 


/    to   r<i(jes.~\ 

People  v.  Bryon,  103  Cal.  675,  518 
People  v.  Buchanan,  145  N.  Y.  1, 

216,  275,  378,  396 
People  v.  Buckland,  13  Wend. 

(N.  Y.)592,  519 

People  v.  Buddensick,  103  N.  Y. 

487,  59,  62 

People  v.  Burke,  11  Wend.  (N.  Y.) 

129,  359 

People  v.  Burridge,  99  Mich.  343,  433 
People  v.  Bush,  68  Cal.  623,  283,  284 
People  v.  Bushton,  80  Cal.  160,  290 
People  v.  Butler,  55  Mich.  408,  294 
People  v.  Butler  (Mich.,  1897), 69 

N.  W.  Rep.  524,  167 

People  v.  Butler,  3  Cow.  (N.  Y.) 

347,  572 

People  v.  Caldwell  (Mich.,  1896), 

65  N.  W.  Rep.  213,  262,  339 

People  v.  Callaghan.  4  Utah  49, 

130,  142 
People  v.  Calvert,  67  Hun  (N.  Y.) 

649,  434,  440 

People  v.  Carlton,  57  Cal.  559,  573 
People  v.  Carolan,  71  Cal.  195, 

259,  302 
People  v.  Carney,  29  Hun  (N.  Y.) 

47,  590 

People  v.  Carpenter,  9  Barb. 

(N.  Y.)  580,  232 

People  v.  Carpenter,  102  N.  Y.  23, 

193,  373 
People  v.  Carr,  64  Mich.  702,  302 

People  v.  Carrier,  46  Mich.  442,  408 
People  v.  Carroll,  54  Mich.  334,  441 
People  v.  Caryl,  12  Wend.  (N.  Y.) 

547,  492,  494 

People  v.  Casey,  72  N.  Y.  393, 

77,  301,  340 

People  v.  Cassidy,  133  N.  Y.  612, 

161,  162,  182,  432 
People  v.  Caton,  25  Mich.  388,  485 
People  v.  Cease,  80  Mich.  576,  457 
People  v.  Cesena,  90  Cal.  381,  580,  584 
People  v.  Chadwick,  2  Park.  Cr. 

Rep.  163,  492 

People  v.  Chapleau,  121  N.  Y. 

266,  298 

People  v.  Chase,  27  Hun  (N.  Y.) 

256,  459,  463 

People  v.  Chase,  97  Hun  296,  133 

People  v.  Chegary,  18  Wend. 

(N.  Y.)  637,  232 

People  v.  Ching,  74  Cal.  389,  296 

People  v.  Chin  Hane,  108  Cal. 

497,  152,  294 

People  v.  Chin  Mook  Sow,  51  Cal. 

597,  128,  129,  139 


TABLE    OF    CASES. 


lxi 


326 


[References  at 

Peopla  v.  Chung  Ah  Chue,  57 

Cal.  567, 
People  v.  Church  (Cal.,  1897),  48 

Pac.  Rep.  125,  420 

People  v.Cipperly,  101  N,  Y.  634,  539 
People  v.  Clark,  33  Mich.  112, 

449,  450,  45.-,,  456,  471 
People  v.  Clark,  14  N.  Y.  Supp. 

642,  515 

People  v.  Clarkson,  56  Mich.  164,  496 
People  v.  Clements,  5  N.  Y.  Cr. 

Rep.  282, 
People  V.Cleveland  (Mich.,  1896), 

65  N.  W.  Rep.  216,  148, 

People  v.  Cline,  74  Cal.  575, 
People  v.  Clough,  73  Cal.  348, 
People  v.  Cobler,  108  Cal.  538, 
People  v.  Cockran,  61  Cal.  548, 
People  v.  Coffman,  59  Mich.  1, 
People  v.  Cole  (Mich.,  1897),  71 

N.  W.  Rep.  455,  587,  600 

People  v.   Cole,  54  Mich.  238,  359 

People  v.  Cole,  43  N.  Y.508,     252,  270 
People  v.  Collins,  64  Cal.  293, 
People  v.  Collison,  85  Mich.  105, 
People  v.  Compton,  1  Duer 

(N.  Y.)  512, 
People  v.  Conklin,  111  Cal.  616, 
People  v.  Conley  (Mich.,  1896),  64 

N.  W.  Rep.  325, 
People  v.  Connelly,  38  Pac.  Rep. 

42, 
People  v.  Connor,  142  N.  Y.  130, 
People  v.  Conroy,  97  N.  Y.  62,  146,  202 
People  v.  Conrov  (N.Y.,  1897),  47 

N.  E.  Rep.  258, 
People  v.  Considine,  105  Mich. 

149, 
People  v.  Constantino  (N.  Y., 

1897),  47  N.  E.  Rep.  37, 
People  v.  Cook,  41  Hun  ( N.  Y.)  67, 

504, 
People  v.  Cook,  45  Flun  34, 
People  v.  Copp,  15  N.  H.  212, 
People  v.  Copsev,  71  Cal.  548, 
People  v.  Corbin,  56  N.  Y.  363, 

108,  488 
People  v.  Costello,  1  Den.  (N.  Y.) 

83,  90 

People  v.  Coughlin,  65  Mich.  704, 

24,  31,  400 
People  v.  Courier,  79  Mich.  366,  476 
People  v.  Courtney,  31  Hun 

(N.  Y.)199,  77 

People  v.  Cowgill,  93  Cal.  596, 

97,  340 
People  v.  Covne  (Cal.,  1897),  48 

Pac.  Rep.  218,  368 


515 

151 
441 

93 
346 
281 

51 


550 
342 

521 

280 

417 

347 
245 


76 
327 
279 

506 

577 
510 
250 


'•e  to  Pages.'] 

People  v.  Craig,  111  Cal.  460, 

254,  382,  392 
People  v.  Crapo,  76  N.  Y.  288,  76,  77 
People  v.  Crawford,  133  N.  Y.  535, 

461,  463 
People  v.  Cronin,  34  Cal.  191,  8,  73 
People  v.  Croswell,  5  John.  Cas. 

(N.  Y.)  337,  423,  465 

People  v.  Crowlev,  102  N.  Y.  234, 

73,  476 
People  v.  Cummins,  47  Mich.  334,  208 
People  v.  Cunningham,  6  Park. 

Cr.  Rep.  398,  26 

People  v.  Curley,  99  Mich.  238,  29,  45 
People  v.  Curtis,  97  Mich.  489,  31 

People  v.  Cutler,  28  Hun  (N.  Y.) 

465,  532 

People  v.  Dailey,  143  N.  Y.  638,  109 
People  v.  Daniels,  105  Cal.  262,  343 
People  v.  Daniels,  34  Pac.  Rep. 

233,  8 

People  v.  D'Argencour,  18  N.  Y. 

Weekly  Dig.  532,  493 

People  v.  Davis,  52  Mich.  569,  214 
People  v.  Davis,  21  Wend.(N.  Y.) 

309,  493 

People  v.  Davis,  56  N.  Y.  95,  42,  134 
People  v.  Deacons,  109  N.  Y.  374, 

160,  181,  398 
People  v.  Dean,  58  Hun  (N.  Y.) 

610,  355 

People  v.  DeFore,  64  Mich.  693, 

448,  449 

People  v.  Deitz,  86  Mich.  419,  419 
People  v.  Demasters,  109  Cal.  607, 

422,  579,  584 

People  v.  Demousset,  71  Cal.  611, 

405,  406 

People  v.  Diaz,  6  Cal.  248,  331,  332 
People  v.  Dixon,  94  Cal.  255,  152 

People  v.  Dohring,  59  N.  Y.  374, 

237,  238,  477 
People  v.  Dolan.  96  Cal.  315,  408 

People  v.  Donaldson,  70  Cal.  116,  507 
People  v.  Donnellv,  2  Park.  Cr. 

Rep.  (N.  Y.)  182,  86 

People  v.  Donohoe,  84  N.  Y.  438,  560 
People  v.  Dowdigan,  67  Mich.  95,  280 
People  v.  Dowling,  84  N.  Y.  478, 

362,  385 

People  v.  Downs,  123  N.  Y.  558, 

193  401 
People  v.  Dovell,  48  Cal.  85,  '  297 
People  v.  Dovle,  58  Hun  535,  82 

People  v.  Driscoll,  107  N.  Y.  420,  376 
People  v.  Druse,  103  N.  Y.  655, 

162,  388 
People  v.  Dumar,  106  N.  Y.  502,     366 


lxii 


TABLE    OK    CASES. 


[References  are  to  Pages."] 


People  v.  Durrant  (Cal.,  1897),  48 

Pac.  Rep.  75,        60,  62,  63,  263,  271 
People  v.  Dye, 75  Cal.  Ill',  273 

People  v.  Dyle,  21  N.  Y.  578,  90 

People  v.  Eastwood,  14  N.  Y.562,  209 
People  v.  Eaton,  59  Mich.  559,  430 
People  v.  Eckert,  2  N.Y.  Cr.  Rep. 

470,  78 

People  v.  Eckman,  63  Hun  (N.Y.) 

209,  539 

People  v.  Eddv,  59  Hun  (N.Y.) 

615,  539 

People  v.  Edwards,  41  Cal.  640,  386 
People  v.  Edwards,  59  Cal.  359,  436 
People  v.  Elliott,  80  Cal.  29(5,  31 

People  v.  Elliott,  106  N.  Y.  288, 

91    93 
People  v.  Elmer  (Mich.,  1897),  67' 

N.  W.  Rep.  550,  342,  343 

People  v.  Emerson,  7  N.  Y.  Cr. 

Rep.  97,  43 

People  v.  Eppinger  (Cal.,  1897), 

46  Pac.  Rep.  97,  581 

People  v.  Etting,  99  Cal.  577,  29,  45 
People  v.  Evans,  72  Mich.  367,  474 
People  v.  Evans  (Cal.,  1897),  41 

Pac.  Rep.  444,  146,  391 

People  v.  Everhardt,  104  N.  Y. 

591,  94,  111,  249,  486,  488 

People  v.  Fair,  43  Cal.  137,  96,  98 

People  v.  Fairchild,  48  Mich.  31,  428 
People  v.  Fancher,  2  Hun  (N.  Y.) 

226,  40,  279 

People  v.  Fanning,  131  N.  Y.  659,  339 
People  v.  Farmer,  77  Cal.  1,  139 

People  v.  Farrell,  30  Cal.  316,  85,  498 
People  v.  Farrell,  31  Cal.  576,  75 

People  v.  Feilen,  58  Cal.  218,  27 

People  v.  Few,  2  Johns.  (N.  Y.) 

290.  522 

People  v.  Fice,  97  Cal.  459,  580 

People  v.  Finley,  38  Mich.  482,  20 

People  v.  Finnegan,  2  Sumner 

(IT.  S.)  240,  337 

People  v.  Fish,  125  N.  Y.  136,  372 

People  v.  Fitzpatrick,  5  Park.  Cr. 

Rep.  26,  232 

People  v.  Flaherty,  79  Hun  (N.  Y.) 

48,  481 

People  v.  Fleming,  14  N.  Y.  Supp. 

200,  354 

People  v.  Flock,  100  Mich.  512,  351 
People  v.  Flvnn,  73  Cal.  511,  340 

People  v.  Foley,  64  Mich.  148,  9,  109 
People  v.  Fong  Ah  Sing,  64  Cal. 

253,  137,  188,  261 

People  v.  Fong  Ah  Sing,  70  Cal.  8, 

134   139 
People  v.  Foo,  112  Cal.  17,  '    76 


People  v.  Foote,  93  Mich.  38,  77 

People  v.  Formosa,  61  Hun  272,  281 
People  v.  Founder  (Cal.,  1897),  47 

Pac.  Rep.  1014,  431,  432 

People  v.  Fowler,  104  Mich.  449,  108 
People  v.  Fox,  3  N.  Y.  Supp.  359, 

160,  161 
People  v.  Frank,  28  Cal.  507,  486 

People  v.  Freeman,  92  Cal.  359,  580 
People  v.  Frindel,  58  Hun  (N.  Y.) 

482,  254, 419 

People  v.  Fultz,  109  Cal.  258,  229,  475 
People  v.  Gage,  62  Mich.  271,  469,  470 
People  v.  Gale,  50  Mich.  237,  77 

People  v.  Gallagher,  75  Mich.  512, 

80,  165,  222 
People  v.  Galland,  55  Mich.  628,  346 
People   v.    Galloway,    17    Wend. 

(N.  Y.)  640,  495,  504 

People  v.  Garbutt,  17  Mich.  9, 

96,  201,  206,  386 
Peoole  v.  Garcia,  63  Cal.  19,  132 

People  v.  Gardner,  144  N.  Y.  119, 

60,  66,  70,  140 
People    v.    Garrahan,   46    N.  Y. 

Supp.  497,  501,  502 

State  v.  Garrett,  80  Iowa  539,  511 

People  v.  Gates,  46  Cal.  52,  447 

People  v.  Gates,  13  Wend.  (N.  Y.) 

311,  224 

People  v.  Gault,  104  Mich.  575,  245 
People  v.  Gelabert,  39  Cal.  663, 

181,  182 
People  v.  German   (Mich.,  1896) 

68  N.  W.  Rep.  150,  525 
People  v.  Getchell,  6  Mich.  496,  501 
People  v.  Giancoli,  74  Cal.  642, 

147,  149 
People  v.  Gibbons,  43  Cal.  557,  166 
People  v.  Gibbs,  98  Cal.  661,  501,  505 
People  v.  Gibbs,  70  Mich.  425, 

448,  450,  451 
People  v.  Giblin,  115  N.  Y.  196,  301 
People  v.  Gibson,  106  Cal.  458,  372 
People  v.  Gibson,  58  Mich.  368,  187 
People  v.  Gillespie  (Mich.,  1897), 

69  N.  W.  Rep.  490,  179,  262 
People  v.  Gillis,  97  Cal.  542,  274 
People  v.  Girdler,  65  Mich.  68,  444 
People  v.  Goldenson;  76  Cal.  328, 

67,  274 
People  v.  Gonzalez,  35  N.  Y.  49,  398 
People  v.  Gordon,  100  Mich.  513,  231 
People  v.  Gosch,  82  Mich.  22,  304 

People  v.  Gould,  70  Mich.  240,  453 
People  v.  Goulette,  82  Mich.  36,  467 
People  v.  Glassman,  12  Utah  237,  42.r, 
People  v.  Glenn,  10  Cal.  32,     140,  1-12 


TABLE    OK    CASES. 


lxiii 


[References  ar 

People  v.  Glover,  71  Mich.  303, 

468,  470,  471,  473,  479 
People  v.  Graney,  91  Mich.  646,  24 
People  v.   Grauer,   12   App.   Div. 

(N.Y.)  464,  480 

People  v.  Gray,  66  Cal.  271,  347 

People  v.  Green,  99  Cal.  564,  248 

People  v.  Green,  1  Denio  (N.  Y.) 

614,  232 

People  v.  Greenwall,  108  N.  Y. 

296,  297,  439 

People  v.  Gress,  107  Cal.  461,  394 

People  v.  Griffin,  77  Mich.  585,  440 
People  v.  Griffin,  38  How.  Pr. 

Rep.  (N.  Y.)  475,  359 

People  v.  Guidici,  100  N.  Y.  503,  17 
People  v.   Guniaer,  4  App.  Div. 

(X.  Y.)  412,  449 

People  v.  Hacklev,  24  N.  Y.  74,  279 
People  v.  Hagan,  60  Hun  (N.  Y.) 

577,  440 

People  v.  Haines,  1  N.  Y.  Supp. 

55,  38 

People  v.  Hall,  94  Cal.  595,  134 

People  v.  Hall,  48  Mich.  482,  302.344 
People  v.  Hamberg,  84  Cal.  468, 

244,  245 
People  v.  Hamblin,  68  Cal.  101,  77 
People  v.  Hancock,  7  Utah  170,  5 

People  v.  Handlev,  100  Cal.  370,  429 
People  v.  Hare,  80  Wis.  107,  186,  189 
People  v.  Harriden,  1  Park.  Cr. 

Rep.  (N.  Y.)  344,  457 

People  v.  Harris,  29  Cal.  678,  207 

People  v.  Harris,  95  Mich.  87,  386 
People  v.  Harris,  4  Denio  (N.  Y.) 

150,  315 

People  v.  Harris,  136  N.  Y.  423, 

8,  113,  228 
People  v.  Harrison,  93  Mich.  594,  293 
People  v.  Hartman,  103  Cal.  246, 

478,  479 
People  v.  Harty,  49  Mich.  490,  587 
People  v.  Haver,  4  N.  Y.  Crirn. 

Rep.  171,  109 

People  v.  Hawes,  98  Cal.  648,  339, 393 
People  v.  Hawkins  (Mich.),  64 

N.  W.  Rep.  756,  347 

People  v.  Hawks  (Mich.,  1897),  65 

N.  W.  Rep.  100,  592 

People  v.  Hawley,  111  Cal.  78,  282 
People  v.  Hayes^  70  Hun  (N.  Y.) 

Ill,  527,528 

People  v.  Haynes,  14  Wend. 

(N.  Yr.)  546,  505 

People  v.  Hecker,  109  Cal.  451,       397 
People  v.  Hendrickson,  46  N.  Y. 
Supp.  402,  352 


e  to  Payes.~\ 

People  v.  Hendrickson,  53  Mich. 

525,  444,  445 

People  v.  Hennsler,  48  Mich.  49, 

111,  502 
People  v.  Herrick  13  Wend.  87, 

501,  504 
People  v.  Hess,  85  Mich.  128,  83 

People  v.  Hess,  40  N.  Y.  Supp.  486, 

217 
People  v.  Hickey,  109  Cal.  275,  423 
People  v.  Hickman,  113  Cal.  80, 

160,  171 
People  v.  Hill  (Cal.,  1897),  48  Pac. 

Rep.  711,  373 

People  v.  Hillhouse,  80  Mich.  580,  273 
People  v.  Hogdon,  55  Cal.  72,  129,  131 
People  v.  Hodnett,  68  Hun  (N.Y.) 

341  539 

People  v.  Hoin,  62  Cal.  120,  193 

People  v.  Holbrook,  13  John.  90,  357 
People  v.  Holfelder,  5  N.  Y.  Crim. 

Rep.  179,  157 

People  v.  Holmes  (Mich.,  1897), 

69  N.  W.  Rep.  501,  196 

People  v.  Hong  Quin  Moon,  96 

Cal.  239,  584 

People  v.  Hooghkerke,  96  N.  Y. 

149,  77 

People  v.  Hope,  62  Cal.  291, 

286,  438,  439 
People  v.  Hopson,  1  Den.  (N.  Y.) 

574,  510 

People  v.  Horr,  7  Barb.  (N.  Y.) 

9,  368,  370 

People  v.  Houghton,  24  Hun 

(N.  Y.)  501,  232 

People  v.  Hovey,  29  Hun  (N.  Y.) 

382,  232 

People  v.  Hovev,  30  Hun  (N.  Y.) 

354,  579 

People  v.  Howell,  4  John.  (N.Y.) 

296,  483 

People  v.  Howes,  81  Mich.  396,  161 
People  v.  Hughes,  41  Cal.  234,  43 

People  v.  Hughes,  91  Hun  (N.Y-.) 

354,  365 

People  v.  Hughes,  137  N.  Y.  29,  17 
People  v.  Hughes  (Utah,  1897),  39 

Pac.  Rep.  492,  421 

People  v.  Hulbut,  4  Denio 

(N.  Y.)  133,  37,  239 

People  v.  Hull,  86  Mich.  449, 

266,  284 
People  v.  Humphrey,  7  John. 

(N.  Y.)  314,  462 

People  v.  Hurley,  60  Cal.  74, 

361,  363,  364 
People  v.  Hurst,  62  Mich.  276,  346 
People  v.  Husband,  36  Mich.  306,    352 


lxiv 


TABLE    OF    CASES. 


[References  are  to  Pages.'] 


People  v.  Hyler,  2  Park.  Cr.  Rep. 

(N.  Y.)  570,  40 

People  v.  Inies  (Mich.,  1896),  68 

N.  W.  Rep.  157,  446 

People  v.  Irwin,  77  Oal.  494,  551 

People  v.  Isl.am  (Mich.,  1896),  67 

N.  W.  Rep.  819,  446 

People  v.  Ivev,  49  Cal.  56,  337 

People  v.  Jackman,  96  Mich.  269,  427 
People  v.  Jackson,  6  N.  Y.  Cr. 

Rep.  393,  481 

People  v.  Jackson,  111  N.  Y.  362, 

43,  64 
People  v.  Jacobs,  29  Cal.  579,  416 

People  v.  Jacobs,  49  Cal.  384,  290 

People  v.  James,  110  Cal.  155,  44 

People  v.  Jenness,  5  Mich.  305, 

115,  444,  445,  457 
People  v.  Johnson,  57  Cal.  571,  77 
People  v.  Johnson,  91  Cal.  265,  346 
People  v.  Johnson,  106  Cal.  289, 

478,  479 
•  People  v.  Johnson,  140  N.  Y.  350,     65 
People  v.  Johnson,  12  Johns. 

(N.  Y.)  292,  499 

People  v.  Jones  (Cal.),  8  Pac.  Rep. 

611,  580 

People  v.  Jones,  106  N.  Y.  523,  492 
People  v.  Jordan,  66  Cal.  10,  500 

People  v.  Josephs,  7  Cal.  129,  96,  97 
People  v.  Josselyn,  39  Cal.  452,  411 
People  v.  Judson,  11  Daly  (N.  Y.) 

1,  548 

People  v.  Kamaunu,  110  Cal.  609,  46 
People  v.  Karnisky,  73  Mich.  637,  597 
People  v.  Kane,  14  Abb.  Pr.  N.  Y. 

8,  449 

People  v.  Kane,  142  N.  Y.  366,  368 
People  v.  Keefer,  104  Mich.  83,  597 
People  v.  Kehoe,  64  Hun  636,  359 

People  v.  Kelly,  47  Cal.  125,  81,  165 
People  v.  Kelly,  35  Hun  (N.  Y.) 

295,  186,  189 

People  v.  Kelly,  24  N.  Y.  74,  40,  305 
People  v.  Kelly,  42  N.  Y.  Supp. 

756,  431 

People  v.  Kemmler,  119  N.  Y. 

580,  228 

People  v.  Kendall,  25  Wend. 

(N.  Y.)  399,  28,  501 

People  v.  Kibler,  106  N.  Y.  321,  536 
People  v.  King,  28  Cal.  265,  38 

People  v.  King,  64  Cal.  338,  574 

People  v.  Kirwan,  67  Hun  (N.  Y.) 

652,  478 

People  v.  Knapp,  71  Cal.  1,  60 

People  v.  Knight  (Cal.,  1897),  43 
Pac.  Rep.  6,  272,  471,  475,  481 


People  v.  Kraft,  91  Hun  (N.  Y.) 

474,  129,  131 

People  v.  Kraft,  148  N.  Y.  631, 

128,  138 
People  v.  Krummer,  4  Park.  Cr. 

Rep.  (N.  Y.)  217,  485,  481 

People  v.  Krnsick,  93  Cal.  74,  453 

People  v.  Kunz,  76  Hun  610,  474 

People  v.  Kurtz,  42  Hun  (N.  Y.) 

335,  161 

People  v.  Lagrille,  1  Wheel.  Cr. 

Cas.  412,  497 

People  v.  Laird,  102  Mich.  135,  60 

N.  W.  Rep.  457,  214 

People  v.  Lake,  12  N.  Y.  358,  204,  205 
People  v.  Lake,  110  N.  Y.  61,  458 

People  v.  Lamb,  2  Keyes  (N.  Y.) 

360,  386 

People  v.  Lampson,  70  Cal.  204,  330 
People  v.  La  Munion,  64  Mich. 

709,  187,  188 

People  v.  Lane,  101  Cal.  513,  224 

People  v.  Lane,  49  Mich.  340,  181 

People  v.  Lane,  31  Hun  (N.  Y.) 

13,  579, 585 

People  v.  Lane,  1  N.  Y.  Crim. 

Rep.  548,  582,  583 

People  v.  Lang,  104  Cal.  363,  341 

People  v.  Lange,  90  Mich.  454,  261 
People  v.  Langtree,  64  Cal.  256, 

89,  236 
People  v.  Lattimore,  86  Cal.  403,  431 
People  v.  Lawrence,  21  Cal.  368,  140 
People  v.  Ledwon,  46  N.  E.  Rep. 

1041,  343 

People  v.  Lee,  49  Cal.  37,  313 

People  v.  Lee  Chuck,  74  Cal.  30,  389 
People  v.  Leighton,  1  N.  Y.  Crim. 

Rep.  468,  585 

People  v.  Lem  You,  97  Cal.  224,  326 
People  v.  Lennox,  67  Cal.  113,  177 
People  v.  Lennox  (Mich.,  1896), 

64  N.  W.  Rep.  488,  501 

People  v.  Lenon,  79  Cal.  625,  475 

People  v.  Lepper,  51  Mich.  196,  178 
People  v.  Levine,  85  Cal.  39,  286 

People  v.  Levy,  71  Cal.  618,  202 

People  v.  Lewis,  64  Cal.  401,  571,  574 
People  v.  Lewis,  62  Hun  (N.  Y.) 

622,  157,  254 

People  v.  Leyba,  74  Cal.  407,  419 

People  v.  Leyshon,  108  Cal.  440,  331 
People  v.  Lilley,  43  Mich.  521 ,  416 
People  v.  Liphart,  105  Mich.  80,  51t 
Peoplev.  Loui  Tone,  90  Cal.  377,  584 
People  v.  Lowrey,  70  Cal.  196,  283 
People  v.  Lvnch,  101  Cal.  229,  389 
People  v.  Macard,  73  Mich.  15,  25 


TABLE    OK    CASES. 


lxv 


[Beferences  are  to  Pages.] 


People  v.  Macard  (Mich.,  1896),  67 

N.  W.  Rep.  968,  526,  528,  529 

People  v.  Mackinder,  29  N.  Y. 

Supp.  842,  421 

People  v.  Mahaney,  41  Hun 

(N.  Y.)  26,  536 

People  v.  Million,  1  Utah  205,  220 

People  v.  Mahoney,  77  Cal.  529,  281 
People  v.  Main,  1 14  Cal.  632,  '  43 
People  v.  Malaspina,  57  Cal.  628,  190 
People  v.  Manahan,  32  Cal.  68,  475 
People  v  Manning,  48  Cal.  335,  46 
People  v.  Marseiler,  70  Cal.  98,  208 
People  v.  Marion,  29  Mich.  31,  152,  484 
People  v.  Markham,  64  Cal.  157, 

291,  313 
People  v.  Marks.  90  Mich.  555,  99 

People  v.  Marshall,  59  Cal.  386, 

405,  408 
People  v  Martin,  102  Cal.  558,  501 
People  v.  Mather,  4  Wend.  (N.Y.) 

229,  300,  303 

People  v.  Maxwell,  83  Hun  (N.Y.) 

157,  34 

People  v.  Maves,  66  Cal.  597,  468 

People  v.  Mayes,  113  Cal.  618, 

29,  76,  344 
People  v.  May  hew,  150  N.  Y.  346, 

92,  93,  582 
People  v.  McCallum,  103  N.  Y. 

587,  172 

People  v.  McCann,  16  N.  Y.  58, 

17,  196,  197,  198 
People  v.  McCarthy,  115  Cal.  255,  196 
People  v.  McCarthy,  45  How.  Pr. 

Rep.  (N.Y.)  97,  571 

People  v.  McConnell,  146  111.  532,  325 
People  v.  McCorf,  76  Mich.  200,  436 
People  v.  McCormick,  135  N.  Y. 

663,  77 

People  v.  McCraney,  6  Park. 

Crim.  Rep.  49,  236 

People  v.  McCrea,  32  Cal.  98,  157 

People  v.  McCrory,  41  Cal.  458, 

177,  329 
People  v.  McCurdy,  68  Cal.  576, 

400,  580 
People  v.  McDonald  (Cal.,  1897), 

45  Pac.  Rep.  1005,  421 

People  v.  McDonald,  9  Mich.  150,  466 
People  v.  McDowell,  71  Cal.  194,  424 
People  v.  McElroy,  60  Hun  (N.  Y.) 

577,  420 

People  v.  McElvaine,  125  N.  Y. 

596,  198.  205 

People  v.  McGinty,  24  Hun  (N.  Y.) 

62,  420 

v— Cr.  Ev. 


People  v.  McGloin,  91  N.  Y.  241, 

166,  169,  175 
People  v.  McGonegal,  42  N.  V.  St. 

Rep.  307,  62  Hun  622,  410,411,414 
People  v.  McGregar,  88  Cal.  140,  46 
People  v.  McGungill,  41  Cal.  429,  79 
People  v.  McKane,  143  N.  Y.  455, 

98, 550 
People  v.  McKenzie,  6  App.  Div. 

N.  Y. 199,  416 

People  v.  McKeon,  19  N.  Y.  Supp. 

486,  148 

People  v.  McLaughlin,  2  App. 

Div.  419,  516 

People  v.  McLaughlin,  44  Cal.  435, 

179 
People  v.  McLean,  71  Mich.  309,  480 
People  v.  McMahon,  15  N.  Y.  384, 

160,  166 
People  v.  McNamara,  94  Cal.  509, 

25,  276 
People  v.  McNutt,  64  Cal.  116,  439 
People  v.  McQuade,  110  N.  Y.  284, 

551 
People  v.  McQuaid,  85  Mich,  123,  462 
People  v.  McSweeney  (Cal.,  1897), 

38  Pac.  Rep.  743,  104 

People  v.  McWhorter,  93  Mich. 

641,  31 

People  v.  McWhorter,  4  Barb. 

(N.  Y.)  438,  85 

People  v.  Mead,  50  Mich.  228, 

69,  100,  437,  439 
People  v.  Meyer,  73  Cal.  548,  574 

People  v.  Millard,  53  Mich.  63, 

31,  344 
People  v.  Miller,  114  Cal.  10,  206 

People  v.  Miller,  2  Park.  Cr.  Rep. 

(N.  Y.)  197,  237 

People  v.  Miller,  91  Mich.  639, 

417,  418 
People  v.  Miller,  96  Mich.  119,  467 
People  v.  Mills,  94  Mich.  630, 

275,  293 
People  v.  Mills,  98  N.  Y.  176,  209 

People  v.  Millspaugh,  11  Mich. 

278,  455 

People  v.  Minnaugh,  131  N.  Y. 

563,  340 

People  v.  Mitchell,  94  Cal.  550, 

165,  186,  290,  376 
People  v.  Mondon,  103  N.  Y.  211,  166 
People  v.  Monk,  8  Utah  35,  517 

People  v.  Monteith,  73  Cal.  7,  209 

People  v.  Montgomery,  53  Cal. 

576,  151 

People  v.  Morphy,  100  Cal.  84,        503 
People  v.  Morrison,  1  Park.  Cr. 

Rep.  (N.  Y.)  625,  477,  478 


Ixvi 


TABLE    OF    CASES. 


[References  are  to  rat/rs.~\ 


People  v.  Morton,  4  Utah  407,  440 
People  v.  Munroe,  100  Cal.  820,  269 
People  v.  Munroe  (Cal.,  1894),  33 

Pac  Rep.  776,  484 

People  v.  Murphy,  45  Cal.  137, 

321 ,  324 
People  v.  Murphy,  101  N.  Y.  126, 

227,415 
People  v.  Murray,  10  Cal.  309,  386 
People  v.  Murray,  52  Midi.  288,  139 
People  v.  Myers,  20  Cal.  518,  197, 198 
People  v.  Naughton,  7  Abb.  Pr. 

(N.  Y.)  421,  37 

People  v.  Nelson,  86  N.  Car.  603;  322 
People  v.  Nelson  (N.  Y.,  1897),  46 

N.  E.  Rep.  1040,  454 

People  v.  Neuman,  85  Mich.  101,  342 
People  v.  Newman,  5  Hill  (N.  Y.) 

295,  321,  323 

People  v.  New  York  Hospital,  3 

Abb.  New  Cases  (N.  Y.)  229,       252 
People  v.  Neyce,  86  Cal.  393,  347 

People  v.  Nino,  149  N.  Y.  317, 

198.  205,  266 
People  v.  Noelke,  94  N.  Y.  137,  77 
People  v.  Nolte  19  Misc.  (N.  Y.), 

674,  528 

People  v.  Noonan  (N.  Y.),  38  St. 

Rep.  854,  582,  584 

People  v.  Northey,  77  Cal.  618,  266 
People  v.  Nyce,  34  Hun  (N.  Y.) 

298  34 

People  v.  O'Brien,  96  Cal.  171,  291 
People  v.  O'Brien,  60  Mich.  8,  90 

People  v.  O'Brien,  92  Mich.  17,  120 
People  v.  Odell,  1  Dak.  197,  207 

People  v.  Ogden,  8  App.  Div.464,  586 
People  v.  Ogle,  104  N.  Y.  511, 

77,  92,  93,  148,  150 

People  v.  Oldham,  111  Cal.  648, 

421,  552 
People  v.  Olmstead,  30  Mich.  431,  136 
People  v.  O'Neil,  109  N.  Y.  251, 

94    259 
People  v.  O'Neill  (Mich.,  1896),  65 

N.  W.  Rep.  540,  290 

People  v.  O'Neil],  112  N.  Y.  325,  147 
People  v.  Orr,  92  Hun  (N.  Y.) 

199,  451 

People  v.  Oscar,  105  Mich.  704,  501 
People  v.  Osmer,  4  Park.  Cr.  Rep. 

(N.Y.)242,  498 

People  v.  Ostrander  (Mich.)  67 

N.  W.  Rep.  1079,  25 

People  v.  O'Sullivan,  104  N.  Y. 

481,  471,  475 

People  v.  Page,  116  Cal.  386,  346,  348 
People  v.  Pallister,  138  N.  Y.  601, 

17,  24,  109,  382 


People  v.  Palmer,  105  Mich.  568,  390 
People  v.  Palmer,  43  Hun  397,  283 
People  v.  Palmer,  109  N.  Y.  110,  11 
People  v.  Parker,  67  Mich.  222, 

-193,  495 
People  v.  Parmelee  (Mich.,  1897), 

70  N.  W.  Rep.  577,  385 

People  v.  Parton,  49  Cal.  632,  172,  27(1 
People  v.  Patterson,  102  Cal.  239,  115 
People   v.   Peabody,  25  Wend. 

(N.  Y.)472,  493,  496 

People  v.  Peacock,  5  Utah  240,  584 
People  v.  Pearsoll,  50  Mich.  233,  188 
People  v.  Pease,   3  John.  Ca. 

(N.  Y.)  333,  256 

People  v.  Penhollow,  42   Hun 

(N.  Y.)  103,  323 

People  v.  Perriman,  72  Mich.  184,  461 
People  v.  Petmecky,  2  N.  Y.  Cr. 

Rep.  450,  148 

People  v.  Phalen,  49  Mich.  492,  587 
People  v.  Pichette  (Mich.,  1897), 

69N.W.  Rep.  739,  184,  188 

People  v.  Pico,  62  Cal.  50,  201,  356 
People  v.  Pierson,  79  N.  Y.  434, 

114,  224,  227,  228,  385,  415 
People   v.    Pinckney,   67   Hun 

(N.  Y.)  428,  503 

People  v.  Pine,  2  Barb.  (N.  Y.) 

566,  337,  338 

People  v.  Pinkerton,  77  N.  Y. 

245,  561 

People  v.  Plath,  100  N.  Y.  590, 

31,  405,  406 
People  v.  Polinsky,  73  N.  Y.  65,  538 
People  v.  Pontius,  82  N.  Y.  339,  418 
People  v.  Porter,  104  Cal.  415,  528 
People  v.  Potter,  5  Mich.  1,  123, 193 
People  v.  Potter,  89  Mich.  353,  25 

People  v.  Powell,  87  Cal.  348,  386,  388 
People  v.  Price,  53  Hun  185,  40 

People  v.  Pustolka,  149  N.  Y.  570,  62 
People  v.  Quick,  51  Mich.  547,  75 

People  v.  Rae,  66  Cal.  423,  500 

People  v.  Raina,  45  Cal.  292,  101 

Poople  v.  Ramirez,  56  Cal.  533, 

171,  280 
People  v.  Randolph,  2  Park.  Cr. 

Rep.  174,  28,  111,  468 

People    v.    Rathburn,   21  Wend. 

(N.  Y.)  509,  151,  489 

People  v.  Ratz,  115  Cal.  132,  467 

People  v.  Rau,  63  N.  Y.  277,  28 

People  v.  Raymond,  96  N.  Y.  38, 

570,  571 
People  v.  Reagle,  60  Barb.  (N.  Y. ) 

525,  231 

People  v.  Rector,  19  Wend.  (N.  Y.) 

569,  372,  373 


TABLE    OF    CASES. 


lxvii 


[Beferences  ar 

People  v.  Reinhart,  39  Cal.  449,  76 
People  v.  Resh  (Mich.),  65  N.  W. 

Rep.  99,  74,  24,  18S 

People  v.  Restenblatt,  1  Abb.  Pr. 

268  37 

People  v.  Rice,  57  Hun  62,  279 

People  v.  Riordan,  7  N.  Y.  Cr. 

Rep.  7,  400 

People  v.  Riodan,  117  N.  Y.  71,  193 
People  v.  Ritchie,  12  Utah  180,  423 
People  v.  Roberts,  114  Cal.  67,  343 
People  v.  Robinson,  2  Park.  Cr. 

Rep.  235,  378 

People  v.  Robinson,  19  Cal.  40,  170 
People  v.  Robles,  34  Cal.  591,  365 

People  v.  Roderigas,  49  Cal.  9, 

406,  454 
People  v.  Rodrigo,  69  Cal.  601, 

32,  102 
People  v.  Roemer,  114  Cal.  51,  76 

People  v.  Rogers,  71  Cal.  565, 

375,  382 

People  v.  Rogers,  18  N.  Y.  8, 

163,  206,  207,  208,  209 
People  v.  Rolfe,  61  Cal.  540,  69 

People  v.  Rose,  52  Hun  33,  83 

People  v.  Ross,  103  Cal.  425,  525 

People  v.  Ross(CaL),  46Pac.  Rep. 

1059,  17 

People  v.  Rowland,  5  Barb.  (N.Y.) 

449,  321 

People  v.  Royce,  106  Cal.  173,  347 
People  v.  Royal,  53  Cal.  62,  472 

People  v.  Russell  (Mich.,  1896), 

67  N.  W.  Rep.  1099,  540 
People  v.  Rvan,  55  Hun  (N.  Y.) 

214,  291 

People  v.  Safford,  5  Denio  (N.Y.) 

112  34 

People  v.  Saint  Clair  (Cal.,  1896), 

44  Pac.  Rep.  234,  360 

People  v.  Salisbury,  2  App.  Div. 

(N.  Y.)  39,  538 

People  v.  Sam  Lung,  70  Cal.  515, 

277  531  535 
People  v.  Samario,  84  Cal.  484,  '  130 
People  v.  Samonset,  97  Cal.  448,  453 
People  v.  Sanchez,  24  Cal.  17, 

129,  130,  379 
People  v.  Sanners,  114  Cal.  216, 

487,  494 
People  v.  Sanford,  43  Cal.  29, 

128,  209 
People  v.  Sare  Co.,  72  Cal.'  623,  133 
People  v.  Schildachter,  5  App. 

Div.  (N.  Y.I  346,  597 

People  v.  Schilling  (Mich.,  1896) 

68  N.  W.  Rep.  233,  594 


e  to  Pages.'] 

People  v.  Schooley,  89  Hun 

(N.Y.)  391,  112 

People  v.  Schooley,  149  N.  Y.  99,  493 
People  v.  Scott,  59  Cal.  341,  177 

People  v.  Scott  (N.  Y.,  1897),  46 

N.  E.  Rep.  1028,  124 

People  v.  Schuyler,  43  Hun  (N.Y.) 

88,  106  N.  Y.  298,  7  N.  Y.  Cr. 

Rep.  262,  204,  205,  228 

People  v.  Seaman  (Mich.,  1896). 

65  N.  W.  Rep.  203,  111,  410 

People  v.  Sebring,  66  Mich.  705, 

37,  232 
People  v.  Sebring,  14  Misc.  Rep. 

(N.Y.)  31,  318 

People  v.  Sellick,  4  N.  Y.  Cr.  Rep. 

329,  36,  38 

People  v.  Sessions,  58  Mich.  594, 

373,  414 
People  v.  Sevine  (Cal.),  22  Pac. 

Rep.  969,  431 

People  v.  Sharp,  53  Mich.  523, 

483,  492 
People  v.  Sharp,  107  N.  Y.  427, 

108,  110,  158,  515 
People  v.  Shattuck,  109  Cal.  673, 

205,  306,  395 
People  v.  Shaw,  63  N.  Y.  36,  143 

People  v.  Shaw,  111  Cal.  171,  294 

People  v.  Shea,  16  Misc.  Rep.  Ill, 

582 
People  v.   Shelters,   99  Mich. 

333,  501 

People  v.  Sheriff,  20  Barb.  (N.  Y.) 

622,  223 

People  v.  Sherman,  133    N.    Y. 

349,  i  263 

People  v.  Shulman,  8  App.  Div. 

514,  586 

People  v.  Shulman,  80  N.  Y.  373,  110 
People  v.  Simonson,  107  Cal.  345,  181 
People  v.  Simpson,  48  Mich.  474,  142 
People  v.  Singer,  5  N.  Y.  Cr.  Rep. 

1,  38 

People  v.  Singer,  21  N.  Y.  Supp. 

33,  515 

People  v.  Skutt,  96  Mich.  449,  115 
People  v.  Slack,  90  Mich.  448,  209 

People  v.  Sligh,  48  Mich.  54,  325 

People  v.  Sliney,  137  N.  Y.  570,  228 
People  v.  Small,  9  Cow.  (N.  Y.) 

778,  495 

People  v.  Smalling,  94  Cal.  112,  181 
People  v.  Smiler,  125  N.  Y.  717,  204 
People  v.  Smith,  103  Cal.  563,  484 

People  v.  Smith,  112  Cal.  333,  384,  398 
People  v.  Smith,  5  Cowen  (N.  Y.) 

258,  367 


lxviii 


TABLE    OF    CASES. 


People  v.  Smith  (Mich.,  1897),  G4 

N.  W.  Rep.  200,  266,  417 

State  v.  Smith,  47  Minn.  475,  594 

People  v.  Smith,  104  N.  Y.  491, 

134,  138 
People  v.  Smith,  121  N.  Y.  578,  63,  65 
People  v.  Soto,  49  Cal.  67, 

160,  161,  433 
People  v.  Special  Sessions,  10  Hun 

(N.  Y.)  224,  407 

People  v.  Spencer,  66  Hun  (N.  Y.) 

149,  515 

People  v.  Squires,  49  Mich.  487,  455 
People  v.  Stackhouse,  49  Mich.  76,  297 
People  v.  Stanford,  64  Cal.  27,  583 
People  v.  Stanley,  47  Cal.  113, 

144,  145,  148,  551,  571 
People  v.  Stark,  59  Hun  (N.  Y.) 

51,  425 

People  v.  Stearns,  21  Wend. 

(N.  Y.)  409,  485,  495 

People  v.  Sternberg,  111  Cal.  3,  341 
People  v.  Stevens,  109  N.  Y.  159,  368 
People  v.  Stewart,  85  Cal.  174,  481 
People  v.  Stewart,  97  Cal.  238,  468 
People  v.  Stocking,  50  Barb. 

(N.  Y.)  573,  43 

People  v.  Stokes,  71  Cal.  263,  445.  447 
People  v.  Stokes,  24  N.  Y.  Supp. 

727,  427 

People  v.  Stone,  32  Hun  (N.  Y.) 

41,  525,  527 

People  v.  Stout,  4  Park.  Cr.  Rep. 

(N.  Y.)71, 
108,  110, 112, 113, 114, 224, 225,  227 
People  v.  Stover,  56  N.  Y.  315,  84 

People  v.  Strait,  148  N.  Y.  566,  201 
People  v.  Strassman,  112  Cal. 

683,  528 

People  v.  Stuart,  4  Cal.  218,  36 

People  v.  Stubenvoll,  62  Mich.  329,  13 
People  v.  Sutton,  73  Cal.  243,  579 

People  v.  Sweeney,  55  Mich.  586, 

290,  295 
People  v.  Sweenev,  133  N.  Y. 

609,  101 

People  v.  Swetland,  77  Mich.  53,  161 
People  v.  Taggart,  43  Cal.  81,  433 

People  v.  Tarbox,  115  Cal.  57, 

181,  471 
People  v.  Tarm  Poi,  96  Cal.  225, 

32,  402 
People  v.  Tassell,  64  Hun  (N.  Y.) 

444,  316 

People  v.  Taylor,  59  Cal.  640,  131,  136 
People  v.  Tavlor,93  Mich.  638, 

160,  182 
People  v.  Taylor,  138  N.  Y.  398, 

193,  197 


[References  are  to  Pages.] 

People  v.  Terwilliger,  74  Hun 


(N.  Y.)  310,  471 

People  v.  Thacker  (Mich.,  1896), 

66  N.  W.  Rep.  562,  108,  378 

People  v.  Thomas,  3  Hill  (N.  Y.) 

169,  501 

People  v.  Thorns,  3  Park.  Cr.  Rep. 

256,  181,  488,  498 

People  v.  Thomson,  92  Cal.  506, 

272,  274,  397 
People  v.  Thurston,  2  Park.  Cr. 

Rep.  N.  Y.  49,  200 

People  v.  Tice,  131  N.  Y.  651,  76 

People  v.  Tierney,  67  Cal.  54,  468 

People  v.  Tiley,  84  Cal.  651,  273 

People  v.  Titherington,  59  Cal. 

598,  441 

People  v.  Tomlinson,  35  Cal.  503,  495 
People  v.  Townsend,  3  Hill 

(N.  Y.)  479,  27 

People  v.  Townsey,  5  Denio 

(N.  Y.)  70,  34 

People  v.  Travers,  88  Cal.  233,  197 
People  v.  Travis,  56  Cal.  251,  390 

People  v.  Trezza,  128  N.  Y.  529,  579 
People  v.  Tripicersky,  4  App.  Div. 

(N.  Y.)  613,  589 

People  v.  Tucker,  104  Cal.  440,  365 
People  v.  Turcott,  65  Cal.  126,  265 
People  v.  Turner,  1  Cal.  152,  520 

People  v.  Urquidas,  96  Cal.  239, 

384,  579 
People  v.  VanAlstine,  57  Mich. 

69,  220 

People  v.  Van  Dam  (Mich.,  1896), 

65  N.  W.  Rep.  277,  100,  442 

People  v.  Vane,  12  Wend. 

(N.  Y.)78,.  96 

People  v.  Van  Ewan,  111  Cal.  144, 

271,  347,  350 
People  v.  Van  Houter,  38  Hun 

(N.  Y.)  168,  25 

People  v.  Vaughan,  42  N.  Y.  Sup. 

959  40 

People  v.  Vedder,  98  N.  Y.  630,  413 
People  v.  Velarde,  59  Cal.  457,  171 
People  v.  Vermilyea,  7  Cow. 

(N.  Y.)  369,  87,  327,  328,  332 

People  v.  Wadsworth,  63  Mich. 

500,  346 

People  v.  Wah  Lee  Mon,  59  Hun 

(N.  Y.)  487,  405 

People  v.  Wakely,  62  Mich.  297,  500 
People  v.  Walker,  38  Mich.  156, 

207,  208 
People  v.  Wallace,  89  Cal.  158,  395 
People  v.  Wallace,  109  Cal.  611, 

449,  455 
People  v.  Ward,  105  Cal.  335,  9 


TABLE    OF    CASES. 


lxix 


70 
161 


80 


People  v.  Ward,  3  N.  Y 

Rep.  483, 
People  v.  Ward,  15  Wend. 

(N.  Y.)  231, 
People  v.  Ware,  29  Hun  (N.  Y.) 

473, 
People  v.  Warner,  51  Hun  (N.  Y.) 

53,  27'.  i 

People  v.  Wasson,  65  Cal.  538,  137 
People  v.  Wayman,  128  N.  Y.  580, 

17,  338 
People  v.  Weaver  (Mich.,  1897), 

(56  N.  VV.  Rep.  567,  133 

People  v.  Webb,  5  N.  Y.  Supp.  855,  229 
People  v.  Webster,  59  Hun  (N.Y.) 

398,  202 

People  v.  Webster,  139  N.  Y.  73,  293 
People  v.  Weiger,  100  Cal.  352,  501 
People  v.  Weithoff,  51  Mich.  203,  531 
People  v.  Welsh,  63  Cal.  167,  144, 145 
People  v.  Wentz,  37  N.  Y.  303,  175 
People  v.  West,  106  Cal.  89,  215,  227 
People  v.  West,  106  N.  Y.  293,  538 
People  v.  Whaley,  6  Cowen 

(N.  Y.)  661,  517 

People  v.  Wheeler,  60  111.  App. 

531,  601 

People  v.  Whipple,  9  Cow.  (N.Y.) 

707,  88 

People  v.  White,  34  Cal.  183,  497,  498 
People  v.  White,  62  Hun  611,  93 

People  v.  White,  3  N.  Y.  Crim. 

Rep.  366,  439 

People  v.  White,  14  Wend.  (N.Y.) 

Ill,  103,263 

People  v.    Whiternan,    114   Cal. 

338, 
People  v.   Wilkinson,  60  Hun 

(N.  Y.)  582, 
People  v.  Willard,  92  Cal.  482, 
People  v.  Willett,  92  N.  Y.  29, 

70,  154,  155 
People  v.  Williams,  17  Cal.  142,      264 
People  v.  Williams,  64  Cal.  87, 
People  v.  Williams,  108  Cal.  187, 
People  v.  Williams,  29  Hun 

(N.  Y.)  520, 
People  v.  Williams,  3  Park.  Cr. 

Rep.  (N.  Y.)  84,  124,  379 

People  v.  Williams,  19  Wend. 

(N.  Y.)  377, 
People  v.  Wilson,  7  App.  Div. 

(N.Y.)  326, 
People  v.  Wilson,  64  111.  195, 
People  v.  Wilson,  109  N.  Y.  345, 
People  v.  Wilson,  151  N.  Y.  403, 
People  v.  Wilson,  3  Park.  Cr.  Rep 

(N.  Y.)  109, 
People  v.  Wiman,  148  N.  Y.  29, 


[Beferences  are  to  Pages.'] 

Crim.  People  v.  Winslow,  39  Mich.  505,   501 

People  v.  Winters,  29  Cal.  658,        438 
People  v.  Wirth  (Mich.,  1897),  66 

N.  W.  Rep.  41,  298 

People  v.  Wolcott,  51  Mich.  612, 

291  438 
People  v.  Wolf,  95  Mich.  625,  "  '  383 
People  v.  Wong  Chong  Suey,  110 

Cal.  117,  360 

People  v.  Wood,  99  Mich.  620,         441 
People  v.  Wood,  126  N.  Y.  249, 

200,  204,  231,  266,  383 
People  v.  Wood,  131  N.  Y.  617;  28 
People  v.  Worden,  113  Cal.  569, 

186,  337 
People  v.  Wright,  19  Misc.  (N.Y.) 

135,  538 

People  v.  Wright,  89  Mich.  70,  60 

People  v.  Wyman,  102  Cal.  552,      349 
People  v.  Young,  31  Cal.  563,  240 

People  v.  Young,  103  Cal.  8,  154 

Perrin  v.  State,  81  Wis.  135,  365 

Perrin  v.  Wells,  155  Pa.  St.  299,      321 
Perrow  v.  State,  67  Miss.  365, 

313,  511 
Perry  v.  State,  94  Ala.  25,  336 

Perry  v.  State  (Idaho,   1894),  38 

Pac.  Rep.  655,  216 

Person  v.  Grier,  66  N.  Y.  124,  316 

Persons  v.  State,  90  Tenn.  291,  27 

Peters  v.  United  States,  2  Okla. 

138,  526 

Petmecky  v.  People,  2  N.  Y.  Cr. 

Rep.  450,  148 

Petrie,  In  re,  1  Kan.  App.  184,        313 
Petrie  v.  Railway  Co.,  29  S.  Car. 

303,  322 

Pettibone  v.  United  States,  148 

U.  S.  197,  510 

Pettit  v.  State,  135  Ind.  393,  328 

Pflueger  v.  State,  46  Neb.  493, 

201,  203 
Pfomer  v.  People,  4  Park.  Cr. 

Rep.  558,  386 

Phelps  v.  Com.  (Ky.,  1896),  32 

S.  W.  Rep.  470,  201 

Phelps  v.  People,  55  111.  334,    352,  486 
Phillips  v.  People,  57   Barb. 

(N.  Y.)  353,  109 

Phillips  v.  State,  62  Ark.  119, 

281,  360,  391,  397 
Phillips  v.  State,  108  Ind.  406,  449 
Pickard  v.  Brvant,  92  Mich.  430,  267 
Pickeral  v.  Com.  (Ky.),  30  S.  W. 

Rep.  617,  45,  420 

Pierce  v.  State,  13  N.  H.  536, 

33  334   337 
Pierce  v.United  States,160U.S.355, 163 


489 

357 

266 


49 
273 

68 


86 

438 
521 
374 
361 

332 

485 


lxx 


TABLE    OF    CASKS. 


[References  at 

Tierson  v.  State,  21  Tex.  App. 

14,  130 

Pierson  v.  People,  79  N.  Y.  424, 

114,  224,  228,  385,  415 
Pigg  v.  State  (Ind.,  1890),  43  N. 

E.  Rep.  309,  276 

Pigman  v.  State,  14  Ohio  555,  208 

Pike  v.  People,   34  111.  App.  112, 

598 
Pilger  v.   Com.,    112  Pa.  St.   220, 

153 
Pior  v.  State,  99  Ala.  196,  77 

Pippen  v.  State,  77  Ala.  81,  367 

Pitman  v.  State,  22  Ark.  354,  389 

Pitman,  Ex  parte,  1  Curtis  C.  C. 

186,  521 

Pitner  v.  State  (Tex.,  1897),  39 

S.  W.  Rep.  662,  109 

Pitner  v.  State,  23  Tex.  App.  366, 

258 
Pitts  v.  State,  43  Miss.  472,  11,  181 
Pittsford  v.  Chittendon,  58  Vt.  49, 

593 
Plake  v.  State,  121  Ind.  433, 

193,  195,  197 
Pleasant  v.  State,  15  Ark.  624, 

278,  337,  469,  477,  478,  479 
Pledger  v.  State,  77  Ga.  242,  279,  295 
Plowes  v.  Bossey,  31  L.  J.  Ch.  681, 

591 
Plumbly  v.  Com.,  2  Mete.  (Mass.) 

413,  571,  573 

Plummer  v.  State,  135  Ind.  308,  542 
Poew  v.  State,  48  N.  J.  L.  34,  413 

Polin  v.  State,  14  Neb.  540, 

120,  286,  328,  376 
Polinsky  v.  People,  73  N.  Y.  65,  538 
Polk  v.  State,  19  Ind.  170, 

196,  198,  377,  378 
Pollard  v.  State,  53  Miss.  410,  186,  466 
Poison  v.  State,  137  Ind.  510, 

215,  262,  468,  471,  472 
Pomeroy  v.  Com.,  2  Va.  Cas.  342,  356 
Pomeroy  v.  State,  94  Ind.  96,  477 

Pontius  v.  People,  82  N.  Y.  339,  418 
Porath  v.  State,  90  Wis.  527,  456 

Porter  v.  State,  55  Ala.  95,  165,  190 
Porter  v.  State,  51  Ga.  300,  532 

Porter  v.  State,  76  Ga.  658,  92 

Porterfield  v.  State,  91  Va.  801,  441 
Potter  v.  State,  92  Ala.  37,  437,  438 
Pound  v.  State,  43  Ga.  88,  386 

Powell,  Ex  parte,  20  Fla.  806,  560 

Powell  v.  Com.  (Kv.),  9  S.  W.  Rep. 

245,  484 

Powell  v.  State,  58  Ala.  362,  236 

Powell  v.  State,  88  Ga.  32,  358 

Powell  v.  State  (Miss.,  1896),  20 

So.  Rep.  4,  449,  454 


e  to  Pages."] 

Powell  v.  State,  11  Tex.  App.  401,  363 
Powell  v.  State  (Tex.,  1897).  37 

S.  W.  Rep.  322,  526 

Powers  v.  People,  42  111.  App.  427, 

llfi 
Powers  v.  State,  80  Ind.  77,  332 

Powers  v.  State,  87  Ind.  144,  129 

Powers  v.  State  (Miss.,  1897), 

21  So.  Rep.  657,  137 

Prater  v.  State,  107  Ala.  26,  430 

Pratt  v.  State,  19  Ohio  St.  277  47'.) 

Prentiss  v.  Bates,  88  Mich.  567,       263 
Pressler  v.  State,  19  Tex.  App. 

52,  .  543 

Price  v.  People,  131  111.  223,  327 

Price  v.  State  (Ala.,  1895),  18  So. 

Rep.  130,  124 

Price  v.  State,  72  Ga.  441,  138 

Price  v.  State,  34  Tex.  Cr.  Rep. 

102,  546 

Price  v.  United  States,  165  U.  S. 

311,  536 

Priest  v.  State,  68  Ind.  569,  588 

Priest  v.  State,  10  Neb.  393, 

180,  182,  550 
Prince  v.  Gundaway,  157  Mass. 

417  599 

Prince  v.  State,  100  Ala.  144, 

147,  189 
Prine  v.  State,  73  Miss.  838,  19  So. 

Rep.  711.  339,  3«H) 

Pritchett  v.  State,  22  Ala.  39,  386 

Procter  v.  Com.  (Ky.,  1893),  20  S. 

W.  Rep.  213,  '469 

Proper  v.  State,  85  Wis.  615, 

115,  262,  263,  466,  467,  471 
Pruitt  v.  State,  92  Ala.  41,  321,  326 
Pruner  v.  Com.,  82  Va.  115,  447 

Pullen  v.  State,  11  Tex.  App.  89,     328 
Puryear  v.  State,  63  Ga.  692,  324 

Putnam  v.  State,  49  Ark.  449,  510 

Putnam  v.  United  States,  162 

U.  S.  687,  269,  290 

Puyear  v.  Reese,  46  Tenn.  21,  205 


Q 


Queen's  Case,  2  Br.  &  Bing.  284,  306 
Quinn  v.  People,  123  111.  333,  82,  84 
Quintana  v.  State,  29  Tex.  App. 

273,  172 

Radbourne's  Case,  2  Leach   Cr. 

L.  520,  131 

Rafferty  v.  State,  91  Tenn.  655,  502 
Railings  v.  Com.,  110  Pa.  St.  103,  134 
Rains  v.  State,  88  Ala.  91,  304 

Rains  v.  State,  7  Tex.  App.  588,  355 
Ramsey  v.  State,  89  Ga.  198,  584 


TABLE    OF    CASES. 


lxxi 


[References  are  to  Pages."] 


Rand  v.  Com.,  9  Gratt.  (Va.)  738.  570 
Randall   v.   People,  5  City  Hall 

Rec.  (N.  Y.)  141,  231 

Randall  v.  State,  132  Ind.  539,  74 

Randall  v.  State,  132  Tnd.  539,  291 
Randall  v.  State,  53  N.  J.  L.  485,  522 
Randolph  v.  State,  100  Ala.  139,  45 
Ransbottom   v.    State,    144    Ind. 

250,  473 

Ranson  v.  State,  26  Fla.  364,  532 

Rapp  v.  Com.,  14  B.  Mon.  (Ky.) 

614,  386 

Rash  v.  State,  61  Ala.  89,  372 

Rath  v.  State,  33  S.  W.  Rep.  229,  514 
Rau  v.  People,  63  N.  Y.  277,  28 

Rauck  v.  State,  110  Ind.  384,  419 

Rawls  v.  State,  97  Ga.  186,  340 

Ray  v.  State,  50  Ala.  104,  20 

Ray  v.  State,  1  Greene  (Iowa)  316,  89 
Raymond  v.  Railway  Co.,  65  Iowa 

152,  225 

Raynar  v.  Norton,  31  Mich.  210,  267 
Reach  v.  State,  94  Ala.  113,  544 

Read  v.  Com.,  22  Gratt.  (Va.)  924,  584 
Rector  v.  Com.,  80  Ky.  468,  576 

Redd  v.  State,  68  Ala".  492,  392 

Redd  v.  State,  69  Ala.  255,  161 

Redd  v.  State  (Ga.,  1897),  25  S.  E. 

Rep.  268,  101 

Reddick  v.  State,  72  Miss.  1008,  84 
Reddick  v.  State  (Tex.,  1896),  34 

S.  W.  Rep.  274,  70 

Redditt  v.  State,  17  Tex.  610,  533 

Reddv  v.  Com.,  97  Ky.  784,  245 

Redman  v.  State,  33  Ala.  428,  531 
Reed  v.  Haskins,  116  Me.  198,  600 
Reed  v.  State,  54  Ark.  621,  26,  365 
Reed  v.  State,  15  Ohio  217, 

488,  493,  497 
Reed   v.    State  (Tex.,    1897),    29 

S.  W.  Rep.  1085,  245 

Reese  v.  State,  7  Ga.  373,  109 

Reeves  v.  State,  29  Fla.  527,  25 

Reeves  v.  State,  95  Ala.  31,  351 

Reaan  v.  State,  46  Wis.  256,  418 

Reggel,  Ex  parte,  114  U.  S.  642, 

557,  560 
595 
164 
104 
405 
467 
467 


Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 

341, 
Reg.  v. 
Reg.  v. 
Reg.  v. 


Armitage,  17  L.  T.  41, 
Arnold,  8  C.  &  P.  621, 
Atwood,  5  Cox  C.  C.  332, 
Baillie,  8  Cox  C.  C.  238, 
Barratt,  12  Cox  C.  C.  498, 
Beal,  10  Cox  C.  C."  157, 
Bedingfleld,  14  Cox  C.  C. 

Bennett,  14  Cox  C.  C.  45, 
Birkett,  8  C.  &  P.  732, 
Bleasdall,  2  C.  &K.  765, 


120 

460 

92 

109 


Reg.  v. 

254, 
Reg.  v. 

437, 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 

432, 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 

582, 
Reg.  v. 

543, 
Reg.  v. 

410, 
Reg.  v. 
Reg.  v. 
Reg.  v. 

Reg.  v. 
Reg.  v. 

701, 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 

Reg.  v. 
Reg.  v. 

Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 

237, 
Reg.  v. 
Reg.  v. 
Reg.  v. 

364, 
Reg.  v. 
Reg.  v. 
Reg.  v. 

Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 
Reg.  v. 

Reg.  v. 


Braithwaite,  8  Cox  C.  C. 
Browning,  3  Cox  C.  C. 

Burdett,  4  B.  &  A.  95, 
Burke,  8  Cox  C.  C.  44, 
Camplin,  1  C.  &K.746, 
Chapman,  1  Den.  C.  C 

Chappie,  9C.  &P.  355, 
Child.  5  Cox  C.  C.  197. 
Clark,  6  Cox  C.  C.  210, 
Clark,  20  Eng.  L.  &  E. 

Cockburn,  3  Cox  C.  C. 

Cockcroft,  11  Cox  C.  C. 

Coe,  6  C.  &  P.  403, 
Cooke,  8  C.  &  P.  582,  486, 
Cotton,  12  Cox  C.  C.  400, 
110, 
Cox,  L.  R.  14  Q.  B.  153, 
Crickmer,  16  Cox  C.  C. 

Crofts,  9  C.  &  P.  219, 
Drew,  8C.  &  P.  140, 
Eyre,  2  F.  &  F.  579, 
Farley,  2  C.  &  K.  313, 

217, 
Ford,  1  C.  &  Marsh.  Ill, 
Foster,  6  Cox  C  C.  521, 

497 
Fox,  10  Cox  C.  C.  502, 
Francis,  4  Cox  C.  C.  57, 
Fretwell,  9  Cox  C.  C.  471, 
Furlev,  1  Cox  C.  C.  76, 
Gadbury,  8  C.  &  P.  676, 
Gazard,  8  C.  &  P.  895, 
Geach,  9  C.  &  P.  499,  486, 
Gibbons,  12  Cox  C.  C. 

Gibson,  1  C.  &  M.  672, 
Gould,  9  C  &  P.  364, 
Gould,  38  Eng.  C.  L.  R 

Harvev,  8  Cox  C.  C.  99, 
Hay,  2  F.  &  F.  4, 
Hayward,  2  C.  &  K.  234, 

217,  220, 
Hill,  15  Jur.  470,  251, 

Hodges,  8  C.  &  P.  195, 
Holmes,  1  C.  &  K.  248, 
Holmes,  12  Cox  C.  C.  137, 
Horton,  11  Cox  C.  C.  670 
Howarth,  11  Cox  C.  C.  588 
505, 
James,  47  Eng.  C.  L.  530, 


527 

512 
10 

301 

477 

512 
314 
326 
573 

576 

474 

481 
414 

488 

111 
220 

112 

577 
167 
469 


498 
575 
277 
418 
167 
98 
238 
489 

460 
240 
173 

367 
238 
223 

223 
2-~>2 
35 
164 
481 
460 

506 
416 


lxxii 


TABLE    OF    CASES. 


[References  are  to  Pages."] 


Reg.  v 
191, 
Reg.  v 
Reg. 
Reg. 
Reg. 
Reg. 
Reg. 
Reg 


Jenkins,  L.  R.  1  C.  C.  R. 


Jones,  1  Den.  C.  C.  166, 
Jordan,  9  C.  &  P.  118, 
Langford,  1  C.  &  M.  602, 
Leng,  1  F.  &  F.  77,       576, 
Lewis,  6  C.  &  P.  161, 
Lines,  1  C.  &  K.  393, 
Livey,  1  Den.  C.  C.  64, 
Reg.  v.  Lurnlev,  L.  R.  1  C.  C.  R. 

196, 
Reg.  v.  Marsh,  6  Ad.  &  E.  236, 
Reg.  v.  Martin,  L.  R.  1  C.  C.  214, 
Reg.  v.  Matthews,  14  Cox  C.  L.  5, 
McNaghten,  10  CI.  &  Fin. 


Reg.  v 

200, 

Reg.  v 

Reg.  v 


Megson,  9  C.  &  P.  420, 
Miller,  18  Cox  C.  C.  54, 

145, 
Reg.  v.  Mills,  7  Cox  C.  C.  263, 
Reg.  v.  Moore,  3  C.  &  K.  319, 
Reg.  v.  Mullins,  3  Cox  C.  C.  526, 
Reg.  v.  Murphy,  8  C.  &  P.  310, 
Reg.  v.  Murray,  1  Salk.  122, 
Reg.  v.  Naylor,  10  Cox  C.  C.  149, 
Reg.  v.  Nicholas,  2  C.  &  K.  246, 

254, 
Reg.  v.  Norman,  1  C.  &  M.  501, 
Reg.  v.  O'Brien,  4  Cr.  L.  Mag.  424, 
Reg.  v.  Oldham,  2  Den.  C.  C.  R. 

472, 
Reg.  v.  Onslow,  12  Cox  C.  C.  358, 
Reg.  v.  Owen,  9  C.  &  P.  83, 
Reg.  v.  Parker,  1  C.  &  M.  493, 
Reg.  v.  Partridge,  6  Cox  C.  C.  182, 
Reg.  v.  Perkins,  9  C.  &  P.  396, 
Reg.  v.  Phillips,  8  C.  &  P.  736, 
Reg.  v.  Phillips,  3  Camp.  73, 
Reg.  v.  Radcliff,  12  Cox  C.  C.  474, 
Reg.  v.  Reason,  1  Str.  499, 
Reg.  v.  Richardson,  3  F.  &  F.  693, 
Reg.  v.  Richardson,  8  Cox  C.  C. 

448, 
Reg.  v.  Rowton,  10  Cox  C.  C.  25, 
102,  103, 
Reg.  v.  Russell,  1  C.  &  M.  247, 
Reg.  v.  Scaife,  5  Cox  C.  C.  243,  17 

Ad.  &  E.  239,  321, 

Reg.  v.  Shaw.  10  Cox  C.  C.  66, 
Reg.  v.  Sell,  9  C.  &  P.  346, 
Reg.  v.  Soley,  11  Modern  115, 
Reg.  v.  Sparks,  Fost.  &  Fin.  388, 
Reg.  v.  Stanton,  1  C.  &  K.  415, 
Reg.  v.  Steele,  12  Cox  C.  C.  168, 
Reg.  v.  Tuffs,  1  Den.  C.  C.  319, 
Reg.  v.  Turner,  9  Cox  C.  C.  145, 
Reg.  v.  Vaughan,  8  C.  &  P.  276, 
Reg.  v.  Walker,  2  Moo.  &Rv.  212, 
Reg.  v.  Warman.  2  C.  &  K.  195, 


133 
223 
467 
368 
577 
112 
477 
367 

459 
238 
575 

98 

193 
469 

146 

505 

207 

92 

552 
591 
501 

474 
346 
426 

439 
314 
88 
528 
507 
143 
467 
414 
507 
142 
214 

347 

105 

238 

322 

527 

177 

547 

89 

477 
132 
223 
460 
486 
469 
375 


Reg.  v.  Whitehead,  L.  R.  1  C.  C. 

R.  33, 
Reg.  v.  Willshire,  L.  R.  6  Q.  B. 

D.  366, 
Reg.  v.  Wilson,  2  C.  &  K.  527, 
Reg.  v.  Wood,  5  Jur.  295, 
Reg.  v.  Young,  10  Cox  C.  C.  371, 
Reid  v.  State,  50  Ga.  556, 
Reid  v.  State,  81  Ga.  760, 
Reilley  v.  State,  14  Ind.  217, 
Reinhold  v.  State,  130  Ind.  467, 

266, 
Reitz  v.  State,  33  Ind.  187, 
Rembert  v.  State,  53  Ala.  467,  483, 
Remson  v.  People,  43  N.  Y.  6,  100, 
Renihan  v.  Dennin,  103  N.  Y.  573, 
Rex  v.  Addis,  6  C.  &  P.  383, 
Rex  v.  Ady,  7  C.  &  P.  140, 
Rex  v.  Akers,  6  Esp.  125, 
Rex  v.  All  Saints,  6  Maule  &  Sel. 

194, 

Alwood,  2  Leach  Cr.  L. 


Rex  v 
521, 
Rex  v 
Rex  v 
Rex  v 
Rex  v 
414, 
Rex  v 
Rex  v 


Baker,  2  Mood.  &  R.  53, 
Barker,  3  C.  &  P.  589, 
Barnard,  7  C.  &  P.  784, 
Beare,  1  Lord  Raymond 


Book,  1  Wils.  340, 
Bolland,  1  Leach  C.  C.  97, 
Rex  v.  Bowman,  6  C.  &  P.  10, 
Rex  v.  Brasier,  1  Leach  Cr.  L. 

237, 
Rex  v.  Burdett,  4  B.  &  A.  95, 
Rex  v.  Chappie,  R.  &  R.  C.  C. 

77, 
Rex  v.  Charlton,  2  N.  Y.  &  Cr. 

316, 
Rex  v.  Clarke,  2  Starkie  Reports 

214,  478, 

Rex  v.  Clewes,  4  C.  &  P.  221, 

113,  182,  377, 
Rex  v.  Codrington,  1  C.  &  P.  661, 
Rex  v.  Cook,  1  Leach  Cr.  L.  123, 
Rex  v.  Court,  7  C.  &  P.  486, 
Rex  v.  Crockett,  4  C.  &  P.  544, 
Rex  v.  Dawson,  1  Stra.  19, 
Rex  v.  Dean  of  St   Asaph's,  3  T. 

R.  428, 
Rex  v.  Derrington,  2  C.  &  P.  418, 
Rex  v.  Dixon,  3  Burr.  1687,     215, 
Rex  v.  Dunn,  1  Moody  C.  C.  146, 
Rex  v.  Durham,  2  Leach  Cr.  L. 

538, 
Rex  v.  Edwards,  4  T.  R.  440, 
Rex  v.  Ellis,  6  B.  &  Cr.  139, 
Rex  v.  Ely,  12  Viner's  Abr.  118, 
Rex  v.  Ford,  2  Salk.  690, 
Rex  v.  Frederick,  2  Stra.  1095, 


252 

27 
486 
103 
93 
•Jl 
584 
157 

549 

44S 
4'.  15 
101 
224 
91 
502 
214 

235 

90 
135 
479 
507 

423 
593 
491 
244 

254 
11 

369 

314 

479 

552 
503 
42 
167 
131 
485 

334 
170 
311 
111 

90 
255 
109 
128 
256 
235 


TABLE    OF    CASES. 


lxxiii 


[Beferences  are  to  Pages.} 


Rex  v 
Rex  v 
Rex  v 

648, 
Rex  v 

581, 
Rex  v 
Rex  v 

582, 
Rex  v 
Rex  v 

199, 
Rex  v 
Rex  v 
Rex  v 
Rex  v 
Rex  v. 

54, 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 

395, 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 

29, 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 

496, 
Rex  v. 

Rex  v. 
Rex  v. 
Rex  v. 

Tria 
Rex  v 

Cas. 


.  Fursev,  6  C.  &  P.  81, 
.  Gibbons,  1  C.  &  P.  97, 
.  Gillam,  2  Russ.  on  Cr. 

.  Gordon,  2  Leach  Cr.  L. 

.  Griffin,  6  Cox  C.  C.  219, 
.  Groombridge,  7  C.  &  P. 

.  Hankins,  2C.&K.  823, 
.  Hardy,  24  How.  St.  Tr. 

.  Hargrave,  5  C.  &  P.  170, 
.  Hazy,  2  C.  &  P.  458, 
,  Hillaway,  1  C.  &  P.  127, 
,  Hind,  8  Cox  C.  C.  300, 
Hornbrook,  1  Cox  C.  C. 

Howell,  1  Den.  C.  C.  1, 
Hutchison,  2  B.  &  C.  608, 
Inhabitants,  7  B.  &  C.  611 
Jackson,  3  Campb.  370, 
Jagger,  1  East  P.  C.  455, 
Jarvis,  2  Moo.  &  Ry.  40, 
Jolliffe,  4  Term  Rep.  290, 
Jones,  2  C.  &  B.  629, 
Kinloch,  18  How.  St.  Tr. 
402, 

Lara,  6  T.  R.  565, 
Lawler,  2  Stra.  904, 
Lloyd,  4  C.  &  P.  233, 
Lloyd,  6  C.  &  P.  483, 
Locker,  5  Esp.  107, 
Luffe,  8  East  193, 
Maidstone,  12  East  550, 
Marsh,  6  Ad.  &  El.  236, 
Martin,  6  C.  &  P.  62, 
Mead,  2  B.  &  C.  605, 
Merthvr  Tidvil,  1  B.  &  A. 


114 
224 

223 

58 
224 

467 
215 

214 
410 
355 
356 
134 

167 
132 
134 
,  54 
507 
232 
93 
323 
182 

252 
499 
313 
134 
175 
235 
593 
593 
37 
480 
134 

54 
495 
133 
369 
369 
510 
361 
237 
143 
513 


Moffatt,  2  Leach  483, 
Mosly,  1  Mood.  C.  C.  97, 
Mott,  1  Leach  C.  C.  85n, 
Movie,  2  East  P.  C.  1076, 
Osmer,  5  East  304, 
Partridge,  7  C.  &  P.  551, 
Peat,  2  Lew.  C.  C.  288, 
Pike,  3  C.  &  P.  598, 
Plvmpton,  2  L.  Ray.  377, 
Priddle,  2  Leach  C.  C. 

255,  256 
Rooney,  7  C.  &  P.  517, 

110,  115 
Rudd,  Cowp.  331,-  90 

Sergeant,  1  R.  &  M.  352,      232 
Sheridan,  31  How.  St. 
Is.  543 

Shukard,  Russ.  &  Ry.  Cr. 
200,  489 


Simons,  6  C.  &  P.  540,  170 

Smith,  1  Mood.  289,  235 

Smith,  1  Phill.  &  A.  118,  223 
Smith,  Russ.  &  Ry.  417,  434 
Sourton,  5  Ad.  &  E.  180,  592 
Spilsbury,  7  C.  &  P.  187,  171 
Stannard,  7  C.  &  P.  673,  96,  9!) 
Sutton,  3  Adol.  &  E.  597,  28 
Thompson,  1  Mood.  C.  C. 

353 
Thornton,  1  Moody  C.  C. 


Turner,  6  How.  St.  Tr.  565 
Turner,  5  Maule  &  S.  206, 
Vaughan,  2  Doug.  516, 
Virrier,  12  A.  &  E.  317, 
Wade,  1  Moody  C.  C.  86, 

252,  254 


Walter,  7  C.  &  P.  267, 

Warickshall,  1  Leach  C. 

298, 

Waters,  7  C.  &  P.  250, 

Watson,  32  How.  St.  Tr. 


Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 

78, 
Rex  v. 

27, 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 
Rex  v. 

Rex  v. 
Rex  v. 

Law 
Rex  v. 
Rex  v. 

105,- 

Rex  v.  Watson,  2  Stark.  116, 
Rex  v.  Watson,  2  Stark.  155, 
Rex  v.  Wedge,  5  C.  &  P  298, 
Rex  v.  Westbeer,  1  Leach  Cr.  L. 

14, 
Rex  v.  Wheeler,  1  Wm.  Bl.  311, 
Rex  v.  White,  2  Leach  Cr.  L.  482, 
247,  250,  252, 
Rex  v.  Whitney,  1  Mood.  C.  C.  3, 
Rex  v.  Wilkes,  7  C.  &  P.  272, 
Rex  v.  Williams,  7  C.  &  P.  320, 

254, 
Rex  v.  AVoodfall,  5  Burr.  2661, 
Rex  v.  Woodward,  4  C.  &  P.  547, 
Reynolds  v.  People  (N.  Y.),  41 

How.  Pr.  Rep.  179, 
Reynolds  v.  State,  68  Ala.  502, 
Reynolds  v.  State,  115  Ind.  421, 
Reynolds  v.  State,  27  Neb.  90, 
Reynolds  v.  State  (Ind.,  1896),  46 

N.  E.  Rep.  31,  297, 

Reynolds  v.  United  States,  98 

U.  S.  145,  320, 

Rhea  v.  State,  18  Tenn.  257, 
Rhea  v.  State  (Tex.,   1897),  38 

S.  W.  Rep.  1012, 
Rhodes  v.  State,  128  Ind.  189,  22, 
Rhvne  v.  Hoffman,  6  Jones  Eq. 

335, 
Richards  v.  State,  91  Tenn.  723, 
Richards  v.  State,  82  Wis.  172, 

140, 
Richardson  v.  People,  31  111.  170, 
Richardson  v.  State,  47  Ark.  562, 


176 
99 

434 
521 
528 


168 

172 
375 

214 
67 
13 

407 


521 

254 
369 

92 

474 
425 
115 

478 
135 

588 
466 

421 

422 
178 

108 
412 

592 
76 

157 
588 
581 


Ixxiv 


TABLE    OF    CASES. 


[References  are  to  Pages. ] 


Richardson  v.  State,  7  Tex.  App. 

486,  399 

Richardson  v.  State,  37  Tex.  346, 

444,  447 
Rice  v.  Com.,  102  Pa.  St.  408,  85 

Rice  v.  Rice,  47  N.  J.  Eq.  559,  311 
Rice  v.  State,  3  Heisk.  (Tenn.) 

215,  172 

Richels  v.  State,  1  Sneed  (Tenn.) 

606,  418 

Rickerstricker  v.  State,  31  Ark. 

207,  236 

Ridenour  v.  State,  65  Ind.  411,        542 
Ridenour  v.  State,  38  Ohio  St. 
"    272,  421 

Ridgeway  v.  West,  60  Ind.  371,  535 
Riggs  v.  Com.  (Ky.,  1896),  33 

S.  W.  Rep.  413,  419 

Riegs  v.  State,  104  Ind.  261,  421 

Riggs  v.  State,  30  Miss.  635,  391 

Rilev  v.  State  (Miss.,  1896),  18  So. 

Rep.  117,  408 

Risk  v.  State,  19  Ind.  152, 

448,  589,  590 
Ritchey  v.  People  (Colo.,  1897), 

47  Pac.  Rep.  272  253 

Ritter  v.  State,  33  Tex.  608,  369 

Rivers  v.  State,  97  Ala.  72,  306 

Rivers  v.  State,  10  Tex.  App  177,  256 
Rixford  v.  Miller,  49  Vt.  319,  322 

Rizzolo  v.  Com.,  126  Pa.  St.  54,  164 
Robb's  Case,  11  Pa.  Co.  Ct.  Rep. 

442,  279 

Robbins  v.  People,  95  111.  175,  534 
Robbins  v.  Railroad  Co.,  165  Mass. 

30,  276 

Robbins  v.  State,  8  Ohio  St.  131,  139 
Roberts  v.  Com.,  94  Ky.  499,  277 

Roberts  v.  Com.  (Ky.,  1897),  20 

S.  W.  Rep.  237,  301 

Roberts  v.  People,  19  Mich.  401,  208 
Roberts  v.  Reilly,  116  IT.  S.  80, 

557,  560 
Roberts  v.  State,  5  Tex.  App.  141,  139 
Roberts  v.  State,  84  Wis.  361,  595 

Robertson  v.  Com.,  22  S.  E.  Rep. 

tVa.)  359,  32 

Robertson  v.  State,  97  Ga.  206,  355 
Robinson  v.  State,  82  Ga.  535, 

265,  510,  520 
Robinson  v.  State,  87  Ind.  292, 

51,  168,  353 
Robinson  v.  State,  113  Ind.  510,  352 
Robinson  v.  State  (Tex.,  1897),  35 

S.  W.  Rep.  651,  259,  535 

Robinson  v.  State,  31  Tex.  170,  416 
Robnett  v.  People,  16  111.  101,  272 
Robson  v.  State,  83  Ga.  166, 

46,  346,  349 


Robson  v.  Thomas,  55  Mo.  581,  44 
Rocco  v.  State,  37  Miss.  357,  245 

Roderiquez  v.   State,  32  Tex.  Cr. 

Rep.  259,  59,  400 

Rodgers  v.  State,  50  Ala.  102,  28,  375 
Rodgers  v.    State,    30  Tex.  App. 

510,  475 

Rodifer  v.  State,  74  Ind.  21,  535 

Rodriquez  v.  State,  20  Tex.  App. 

542,  467 

Roelker,   In  re,  1   Sprague  Dec. 

276,  278 

Rogers  v.  Bullock,  3  N.  J.  L.  109,  317 
Rogers  v.  State,  60  Ark.  76,  237 

Rogers  v.  State  (Tex.,    1897),  32 

S.  W.  Rep.  1044,  528 

Rollins  v.  State  (Tex.,   1893),  20 

S.  W.  Rep.  358,  329,  490 

Romanes,  Ex  parte,  1  Utah  23,  561 
Ronan  v.  Dngan,  126  Mass.  176,  598 
Roode  v.  State,  5  Neb.  174,  495 

Rooney  v.  State  (Neb.,   1897),  71 

N.  W.  Rep.  309,  359 

Roper  v.  State,  58  N.  J.  L.  420,  219 
Rosales  v.  State,  22  Tex.  App.  673,  504 
Rose  v.  State,  13  OhioCir.  St.  342, 

69, 157 
Rosen  v.  United  States,  161  U.  S. 

29,  536 

Ross,  Ex  parte,  2  Bond.  C.  C.252,  567 
Ross  v.  People,  34  111.  App.  21,  596 
Ross  v.  State,  74  Ala.  532,  152 

Ross  v.  State,  67  Md.  286,  160 

Rosson  v.  State,  23  Tex.  App.  287,  257 
Roten  v.  State,  31  Fla.  514,  385,  386 
Rothschild   v.    State,    13   Lea 

(Tenn.)  294,  505 

Rouch  v.  Great  West.  R.  R.  Co., 

1  Q.  B.  51,  121 

Rounds  v.  State,  57  Wis.  45,  325 

Rountree  v.  State,  88  Ga.  457,  90 

Roush  v.  State,  34  Neb.  325,  484 

Roussell  v.  Com.,  28  Gratt.  (Va.) 

274,  330 

Routt  v.  State,  61  Ala.  594,  420 

Rowell  v.  Fuller,  59  Vt.  688,  63 

Rowland  v.  State,  45  Ark.  132,  552 
Eubv  v.  State,  9  Tex.  App.  353,  240 
Ruch   v.  Rock   Island,  97  U.    S. 

693,  234 

Rudy  v.  Com.,  128  Pa.  St.  500,  21, 193 
Ruier  v.  State,  25  Ohio  St.  464,  162 
Ruffin  v.  State  (Tex.,  1897),  38 

S.  W.  Rep.  169,  513,  515 

Ruloff  v.  People,  18  N.  Y.  179, 

11  63  8"^ 
Runnels  v.  State,  28  Ark.  121,  '  '  89 
Rush  v.  Smith,  1  C.  M.  &  R.  94,  270 
Russell  v.  Jackson,  9  Hare  387,       220 


TABLE    OF    CASES. 


lxxv 


[References  are  to  Pages.] 


Eussell  v.  State  (Tex.,  1897),  39 

S.  W.  Rep.  674,  152 

Ruston's  Case,  1  Leach  Criin. 

Law  455,  253 

Ruston  v.  State,  4  Tex.  App.  432,  69 
Rutherford  v.  Com.,  78  Ky.  639,  283 
Ryan,  In  re,  15  Misc.  Rep.  503,  561 
Ryan  v.  People,  79  N.  Y.  593, 

77,  78,  140,  147,  301 
Ryan  v.  State,  45  Ga.  128,  503 

Ryan  v.  State,  22  Tex.  App.  699,  45 
Ryan  v.  State  (Tex.,  1896),  35 

S.  W.  Rep.  288,  388 

Ryan  v.  State,  83  Wis.  486, 

148,  266,  441 


S 


Sabins  v.  Jones,  119  Mass.  167, 

597,  598 
Sage  v.  State,  127  Ind.  15, 

51,  202,  203,  305,  325 
Shalinger  v.  People,  102  111.241, 

360,  441 
Saint  v.  State,  68  Ind.  128,  595 

St.  Louis  v.  Sullivan,  8  Mo.  App. 

455,  532 

St.  Louis,  etc.,  Co.  v.  Weaver,  35 

Kan.  412,  568 

Sale  v.  Crutchfleld,  8  Bush  (Ky.) 

636,  599 

Sample  v.  Frost,  10  Iowa  266,  217 

Samuel  v.  People,  164  111.  379,         304 
Sanchez  v.  State,  22  N.  Y.  147, 

200,  204 
Sanchez  v.  State,  27Tex.  App.  15,  538 
Sanders  v.  Com.  (Ky.),  18  S.  W. 

Rep.  528,  395 

Sanders  v.  Bagwell,  37  S.  Car.  145, 

265 
Sanders  v.  State,  94  Ind.  147,  206,  378 
Sanders  v.  State,  85  Ind.  318,  178 

Sanders  v.  State,  73  Miss.  444,  84 

Sands  v.  Com.,  20  Gratt.  (Va.) 

800,  486 

Sang  v.  Beers,  20  Neb.  365,  597 

Sapp  v.  King,  66  Tex.  App.  570,      312 
Sargent  v.  Cavis,  36  Cal.  552,  309 

Sartorious  v.  State,  24  Miss.  602, 

275,  278 
Sasse  v.  State,  68  Wis.  530,  282,  283 
Sasser  v.  State,  13  Ohio  453,  493 

Sater  v.  State,  56  Ind.  378,  190 

Satterwhite  v.  State,  28  Ala.  65,      588 
Sattler  v.  People,  59  111.  68,  368 

Saunders  v.  State,  10  Tex.  App. 

336,  177,  178 


Saussy  v.  So.  Flor.  R.  Co.,  22 

Fla   327  299 

Sawyer  v.'People,  91  N.  Y.  667, 

102,  401 
Saxon  v.  State,  96  Ga.  739,  51,  302 

Say  res  v.  Com.,  88  Pa.  St.  291,  397 
Schanzenbach  v.  People,  58  111. 

App.  526,  293 

Scharf  v.  People,  34  111.  App.  400, 

597,  598 
Schaser  v.  State,  36  Wis.  429,  275 

Schlemmer  v.  State,  51  N.  J.  L.  23, 

118,119,124 
Schlenker  v.  State,  9  Neb.  241,  202 
Schnicker  v.  People,  88  N.  Y.  192,  124 
Schnier  v.  People,  23  111.  11,  280 

Schoeffler  v.  State,  3  Wis.  822,  166 
Schoenfeldt  v.  State,  30  Tex.  App. 

695,  92,  94,  457 

Schoolcraft  v.  State,  117  111.  271, 

391,  392 
Schoudel  v.  State,  57  N.  J.  L.  209,  447 
Schubkagel  v.  Dierstein,  131 

Pa.  St.~46,  217 

Schuster  v.  State,  80  Wis.  107, 

186,  187,  262,  263,  290 
Schwen  v.  State  (Tex.,  1896),  35 

S.  W.  Rep.  172,  552 

Sconyers  v.  State,  85  Ga.  672,  580 

Scott  v.  Com.,  10  Mass.  154,  358 

Scott  v.  Donovan,  153  Mass.  378, 

589,  599 
Scott  v.  People,  141  111.  195, 

339,  341,  410,  412 
Scott  v.  People,  62  Barb.  62,  504 

Scott  v.  State  (Ala.,  1897),  21  So. 

Rep.  425.  505 

Scott  v.  State,  94  Ala.  80,  542 

Scott  v.  State,  42  Ark.  73,  45 

Scott  v.  State  (Ark.,  1897),  38  S.W. 

Rep.  339,  92 

Scott  v.  State,  12  Tex.  App.  31, 

207,  208 
Scruggs  v.  State,  90  Tenn.  81,  406,  407 
Scruggs  v.  State  (Tex.,   1896),  34 

S.  W.  Rep.  951,  584 

Searls  v.  People,  13  111.  597,  444,  447 
Searcv  v.  State,  28  Tex.  App.  513,  175 
Seitz  v.  Seitz,  170  Pa.  St.  71,  234 

Selden  v.  State,  74  Wis.  271,  222 

Sellers  v.  People,  6  111.  183,  177 

Semon  v.  People,  42  Mich.  141,  587 
Sentell  v.  State,  34  Tex.  Cr.  Rep. 

260,  297 

Settle  v.  Alison,  8  Ga.  201,  562 

Sewall  v.  Robbins,  139  Mass.  164,  272 
Seymour,  Ex  parte,  14  Pick.  (Mass. ) 

40,  570,  573 


lxxvi 


TABLE    OF    CASES. 


[References  a 

Shackelford  v.  State,  33  Ark.  539, 

321,  326 
Shaeffer  v.  State,  61  Ark.  241,  201 

Shaffer  v.  State,  82  Ind.  221,  504 

Shaffner  v.  Com.,  72  Pa.  St.  60,  110 
Shanahan  v.  Com.,  8  Bush  (Ky.) 

463,  208 

Sharkey  v.  State,  33  Miss.  353,  531 
Sharp  v.  State,  51  Ark.  147  266 

Sharp  v.  State,  17  Ga.  290,  34 

Sharp  v.  State,  53  N.  J.  L.  511,  500 
Sharp  v.  State,  29  Tex.  App.  211, 

353,  354 
Shattuck  v.  State,  51  Miss.  575,  523 
Shaw,  Ex  parte,  61  Cal.  58,  313 

Shaw  v.  People,  63  N.  Y.  38,  136,  137 
Shaw  v.  State,  28  Tex.  App.  236,  425 
Shaw  v.  State,  32  Tex.  Cr.  Rep. 

155,  169 

Shears  v.  State  (Ind.),  46  N.  E. 

Rep.  197,  331,  108,  304 

Sheehan  v.  People,  131  111.  22, 

188,  271 
Shelby  v.  State  (Ky.),  16  S.  W. 

Rep.  461,  552 

Sheldon,  Ex  parte,  34  Ohio  St.  319, 

561 
Shelly  v.  State,  95  Tenn.  152,  456 

Shely  v.  State  (Tex.),  32  S.  W. 

Rep.  901,  58 

Shepard,  In  re,  18  Blatchf.  225,  311 
Shepherd's  Case,  2  Leach  C.  C. 

609,  370 

Shepherd  v.  People,  72  111.  480,  377 
Shepler  v.  State,  114  Ind.  194,  245 
Shepperd  v.  People,  25  N.  Y.  406,  243 
Shepperd  v.  State,  94  Ala.  102, 

18,  360 
Shepperd  v.  State,  31  Neb.  389,  266 
Sheridan's  Case,  31  How.  St. 

Trials  543,  61 

Sherman  v.  People,  13  Hun  (N.Y.) 

576,  462 

Shields  v.  State,  32  Tex.  Cr.  Rep. 

498,  479 

Shinn  v.  Com.,  32  Gratt.  (Va.) 

899  353 

Shirley  v.  State  (Tex.,  1893),  22 

S.  YV.  Rep.  42,  368,  370 

Shirwin  v.  People,  69  111.  55, 

329,  474,  475,  480 
Shivers  v.  State,  .53  Ga.  149,  351 

Shorey  v.  Hussev,  32  Me.  579,  289 
Short  v.  Com.  (Ky.),  4  S.  W.  Rep. 

810,  393 

Short  v.  State,  4  Harr.  (Del.)  568, 

597 
Shorter  v  State,  63  Ala.  129,  544,  545 
Showalter  v.  State,  84  Ind.  562,  82,  84 


re  to  Pages.'] 
Shriedley  v.  State,  23  Ohio  St.  130, 


Shrivers  v.  State,  7  Tex.  App.  450, 


111 

123 


Shubrick  v.  State,  2  S.  Car.  21,  369 
Slmlar  v.  State,  105  Ind.  289,  282,  283 
Shultz  v.  State,  5  Tex.  App.  390,  263 
Siberry  v.  State,  133  Ind.  677, 

17,  59,  103,  286,  376,  385 
Siebert  v.  People,  143  111.  571,  60 

Sidelinger  v.  Bucklin,  64  Me.  371, 

590,  596,  599 
Simmons  v.  Com.  (Ky.),  18  S.  W. 

Rep.  534,  381 

Simmons  v.  State,  88  Ga.  169,  524 

Simmons  v.  State,  32  Fla.  387,  296 
Simmons  v.  State,  4  Ohio  113,  483 

Simmons  v.  State,  61  Miss.  243, 

161,  162 
Simon  v.  State,  108  Ala.  27,  372 

Simon  v.  State,  36  Miss.  636,  164 

Simon  v.  State,  37  Miss.  288,  165 

Simon  v.  State,  31  Tex.  Cr.  Rep. 

186,  457 

Simons  v.  People,  150  111.  66,  127,  130 
Simpson  v.  State  (Ala.,  1896),  20 

So.  Rep.  572,  438 

Simpson  v.  State,  56  Miss.  297,  285 
Simpson  v.  Yeend,  4  L.  R.  Q.  B. 

626,  576 

Sims  v.  Sims,  75  N.  Y.  466,  257 

Sims  v.  State,  43  Ala.  36,  342 

Sims  v.  State,  136  Ind.  358,  435 

Sims  v.  State,  21  Tex.  App.  649,  245 
Sindram  v.  People,  88  N.  Y.  196, 

105,  386 
Singleton  v.  State  (Fla.,  1897),  21 

So.  Rep.  21,  256 

Sisk  v.  State,  28  Tex.  App.  432,  268 
Skaggs  v.  State,  108  Ind.  5, 

252,  279,  280 
Skains  v.  State,  21  Ala.  218,  547 

Skates  v.  State,  64  Miss.  644,  329 

Skeen  v.  State,  34  Tex.  Cr.  Rep. 

308,  544 

Skidmore  v.  State,  43  Tex.  93,  419 
Skiff  v.  People,  2  Park  Cr.  Rep. 

139,  502,  505 

Skipworth  v.  State,  8  Tex.  App. 

135,  330 

Slade  v.  State,  29  Tex.  App.  381,  31 
Slattery  v.  People,  76  111.  217, 

154,  155,  409 
Sledge  v.  State  (Ga.,  1897),  26  S. 

E.  Rep.  756,  421 

Slingerland  v.  Slingerland,  46 

Minn.  100,  326 

Slinev,  In  re,  137  N.  Y.  570,  226 

Sloan"  v.  People,  47  111.  76,  360 


TABLE    OF    CASKS. 


lxxvii 


[References  are  to  Pages. ] 


528 
568 


Sloan  v.  State,  71  Miss.  459, 
Sloan  v.  Tory,  78  Mo.  623, 
Slocum  v.  People,  90  111.  274, 

26,  27,  405,  407,  455 
Small  v.  Com.,  91  Pa.  St.  304,  132 

Smallwood  v.  Com.  (Kv.,  1896), 

33  S.  W.  Rep.  822,  419 

Smith,  In  re,  (il  Hun  (N.  Y.)  101,  223 
Smith,  Ex  parte,  '.'>  McLean  C.  C. 

121,  558,  560 

Smith  v.  Com.  (Kv.),  4  S.  W.  Rep. 

798  393 

Smith  v.  Com.,  98  Ky.  437,       425,  427 
Smith  v.  Com.,  10  Gratt.  (Va.)  734, 

174 
Com.,  21  Gratt.  (Va.) 


Smith  v 

809, 
Smith  v 
Smith  v 


11 

Com.,  85  Va.  924,  475 

Com.,  90  Va.  759,  236 

Smith  v.  Jones,  76  Me.  138,  317 

Smith  v.  Lint,  37  Me.  546,  587 

Smith  v.  People,  103  111.  82,  360 
Smith  v.  People,  53  N.  Y.  Ill,         499 

Smith  v.  State,  9  Ala.  990,  179 

Smith  v.  State,  45  Ala.  43,  416 

Smith  v.  State,  55  Ala.  1,  209 

Smith  v.  State,  79  Ala.  21,  77 

Smith  v.  State,  96  Ala.  66,  542 

Smith  v.  State,  107  Ala.  130,  449 
Smith  v.  State,  108  Ala.  1,    43,  74,  453 

Smith  v.  State,  59  Ark.  132,  242 

Smith  v.  State,  29  Fla.  408,  146,  487 

Smith  v.  State,  77  Ga.  705,  474 

Smith  v.  State,  88  Ga.  627,  160,  161 

Smith  v.  State,  69  Ind.  140,  542 
Smith  v.  State,  143  Ind.  685, 

306,  580,  584 

Smith  v.  State,  33  Me.  48,  409 

Smith  v.  State,  39  Miss.  521,  416,  417 
Smith  v.  State,  55  Miss.  513, 
Smith  v.  State,  67  Miss.  116, 
Smith  v.  State,  8  Ohio  294, 
Smith  v.  State,  42  Tex.  444, 
Smith  v.  State,  43  Tex.  433, 
Smith  v.  State,  43  Tex.  643, 
Smith  v   State,  19  Tex 
Smith  v.  State,  21  Tex 


505 
244 
367 
282,  283 
368 
373 

App.  95,      198 

App.  277, 
121,  275,  276 

Cr.  Rep. 

199 


Smith  v.  State,  31  Tex 

14, 
Smith  v.  State  (Tex.),  20  S.  W 

Rep.  554,  295 

Smith  v.  State,  30  S.  W.  Rep.  236,  350 
Smith  v.  State  (Tex.,  1896),  32  S. 

W.  Rep.  696,  486 

Smith  v.  State  (Tex.),  34  S.  W.  Rep. 

960,  10 

Smith  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  200,  93 


Smith  v.  Young,  1  Camp.  439,  55 

Smith's  Case,  2  City  Hall  R. 

(N.  Y.)  77, 
Smith  v.  United  States,  161  U.  S. 

85, 
Smurr  v.  State,  88  Ind.  504, 
Snapp  v.  Com.,  82  Kv.  173,      364,  369 
Snell  v.  State,  2  Humph.  (Tenn.) 

347,  485 

Snell  v.  State,  29  Tex.  App.  237,  132 
Snodgrass  v.  Com.,  89  Va.  679,  276 
Snow  v.  Gould,  74  Me.  540,  219 

Snyder,  In  re,  17  Kan.  542, 

503,  504,  505 
Snyder  v.  Com.,  85  Pa.  St.  519, 

103,  108 


224 

386 
44 


Solander  v.  People,  2  Colo.  48, 
Soquet  v.  State,  72  Wis.  659, 
Sosat  v.  State,  2  Ind.  App.  586, 
South  v.  People,  98  111.  261, 

171,  181, 
South  v.  State,  86  Ala.  617, 
South  Railroad  N.  Co.  v.  Russell, 

91  Ga.  808, 
Southwick  v.  South  wick,  2  Sween. 

(N.  Y.)  234, 
Spencer  v.  S.,  21  N.  J.  L.  196, 
Sparf  v.  United  States,  156  U.  S. 

51, 
Sparks  v.  Com.,  89  Ky.  644, 
Sparrenberg  v.  State,  53  Ala.  481, 
37,  38, 
Speight  v.  State,  80  Ga.  512, 
Spence  v.  Thompson,  11  Ala.  746, 
Spencer's   Case,   2   Leigh  (Va.) 

751, 
Spies  v.  People,  122  111.  1,     17, 19, 
76,  291,  292,  304,  399,  550,  551, 
Spigner  v.  State,  103  Ala.  30, 
Spittorf  v.  State,  108  Ind.  171, 
Spratt  v.  State,  8  Mo.  247, 
Springfield  v.  State,  96  Ala.  81, 
Squire  v.  S.,  46  Ind.  459, 
Stack  v.  State,  63  Ind.  285, 
Stafford  v.  State,  40  Ala.  720, 
Stage's  Case,  5  City  Hall  Rec. 

(N.  Y.)  177, 
Stakes  v.  Revsle,  53  N.  Y.  164, 
Stalcup  v.  State,  129  Ind.  519, 
Stalcup  v.  State  (Ind.,  1897),  45 

N.  E.  Rep.  334, 
Stalcup  v.  State,  146  Ind.  270, 
Stalker  v.  State,  9  Conn.  341, 
Shillings  v.  State,  29  Tex.  App. 

220,  "  346, 

Stallins  v.  State,  47  Ga.  572, 
Stanglein  v.  State,  17  Ohio  St.  453, 

462, 


412 
378 
369 

462 


305 

233 
200 

337 


239 

46 

518 

489 

553 
341 
356 
240 
101 
459 
353 
111 

176 
193 

584 

387 

76 

498 

349 
161 

463 


lxxviii 


TAULK    OF    CASES. 


[References  are  to  Pages."] 


Stanley  v.  Montgomery,  102  Ind. 
102, 


234 


347 
104 
82,  83 
W. 

328 


Stanley  v.  State,  88  Ala.  154, 
Stape  v.  People,  85  N.  Y.  390, 
Staples  v.  State,  89  Tenn.  231, 
Stapleton  v.  Com.  (Ky.),  3  S. 

Rep.  793, 
Stapleton  v.  Crofts,  83  Eng.  C.  L. 

Rep.  369,  231 

Starke  v.  State,  97  Ga.  193,  444 

Starkey  v.  People,  17  111.  17,     127,  128 
Starr  v.  Com.,  97  Kv.  193,  30  S. 

W.  Rep.  397,  137 

Starr  v.  United  States,  164  U.  S. 

627,  149 

State  v.  Abbey,  29  Vt.  60,  461 

State  v.  Abbott,  97  Mich.  484,  480 

State  v.  Abbott,  8  W.  Va.  741, 

124,  388,  389 
State  v.  Able,  65  Mo.  357,  320,  324,  326 
State  v.  Abram,  10  Ala.  931,  421 

State  v.  Adams,  20  Kan.  311, 

282,  283,  284,  331 
State  v.  Adams  (Kan.,  1897),  49 

Pac.  Ren.  81,  421 

State  v.  Adams,  40  La.  An.  213,  235 
State  v.  Adams,  108  Mo.  208,  346,  350 
State  v.  Adamson,  114  Ind.  216,  347 
State  v.  Adamson,  43  Minn.  196,  302 
State  v.  Addison,  2  S.  Car.  256,  140 
State  v.  Ah  Chuey,  14  Nev.  79,  60,  66 
State  v.  Ah  Lee,  8  Ore.  214,  128,  283 
State  v.  Aldrich,  50  Kan.  666, 
State  v.  Aleck,  41  La.  An.  83, 
State  v.  Alexis,  45  La.  An.  973, 
State  v.  Alexander,  66  Mo.  148, 
State  v.  Alexander,  119  Mo.  447, 
State  v.  Alexander,  30  S.  Car.  74, 
State  v.  Allen,  57  Iowa  431, 
State  v.  Allen,  48  La.  An.  1387, 


130 
418 
302 
101 
501 
193 
91,  93 
400 
State  v.  Allen,  116  Mo.  548,  491 

State  v.Allen,  1  Hawks  (N.Car.)  6,  499 
State  v.  Allen,  107  N.  Car.  805,  304 
State  v.  Allisbach,  69  Ind.  50,  370 

State  v.  Allrick,  63  Minn.  328,  588 
State  v.  Aired,  115  Mo.  471,  '  329 
State  v.  Ames,  64  Me.  386,  313,314 
State  v.  Anderson,  47  Iowa  142,  500 
State  v.  Anderson,  89  Mo.  312,  84 

State  v.  Anderson,  92  N.Car.  732, 

549,  550,  551 
State  v.  Anderson,  5  Wash.  St. 

350,  440 

State  v.  Andrews,  43  Mo.  470,  532 

State  v.  Andrews,  41  Minn.  50.  445 
State  v.  Anthony,  1  McCord. 

(S.  Car.)  285,  236 

State  v.  Antonio,  3Brev.  (S.  Car.; 
562,  497 


State  v.  Ariel,  38  S.  Car.  221,  381 

State  v.  Armistead,  106  N.  Car. 

639,  510,  525 

State  v.  Armstrong,  48  La.  An. 

314,  583 

State  v.  Armstrong,  4  Minn.  335, 

461,  462 
State  v.  Armstrong,  106  Mo.  395, 

334  424 
State  v.  Arnold,  12  Iowa  479,  205J  462 
State  v.  Arnold,  13Ired.  (N.  Car.) 

Law  184,  34,  408,  589 

State  v.  Asbell,  57  Kan.  398,  9,  372 
State  v.  Atkinson,  40  S.  Car.  365,  S 
State  v.  Atkinson,  9  Humph. 

(Tenn.)  677,  245 

State  v.  Aughtrye  (S.  Car.,  1897), 

26  S.  E.  Rep.  619,  340 

State  v.  Austin,  113  Mo.  538,  571 

State  v.  Avery,  113  Mo.  475, 

8  9   77   272 
State  v.  Avers  (S.  Dak.,  1896),'  67' 

N.  W.  R'ep.  785,  452 

State  v.  Babb,  76  Mo.  501,  356 

State  v.  Baber,  74  Mo.  292,  204 

State  v.  Bacon,  13  Ore.  143,  77 

State  v.  Badger  (Vt.,  1897),  37 

Atl.  Rep.  293,  125 

State  v.  Bain,  43  Kan.  638,  43 

State  v.  Baker,  20  Mo.  338,  238 

State  v.  Baker,  136  Mo.  74,  471 

State  v.  Baker  (Mo.),  19  S.  W. 

Rep.  222,  150 

State  v.  Baker  (Mo.),  37  S.  W. 

Rep.  810,  296 

State  v.  Baker,  13  Lea  (Tenn.) 

326  330  332 

State 'v.  Baker,  33  W.  Va.  319,  '  60 
State  v.  Balch,  136  Mo.  133,  421 

State  v.  Baldwin,  79  Iowa  714, 

134  138 
State  v.  Baldwin,  36  Kan.  1, 

145,  267,  273,  294.  326,  378,  379 
State  v.  Baldwin,  80  N.  Car.  390,  524 
State  v.  Baldwin,  15  Wash.  St.  15, 

139 
State  v.  Ballard,  104  Mo.  634,  356 

State  v.  Bailer,  26  W.  Va.  90,  313 

State  v.  Bancroft,  10  N.  H.  105.  434 
State  v.  Banister,  35  S.  Car.  290, 

129,  130,  133,  138 
State  v.  Banks,  40  La.  An.  736,  93 
State  v.  Banks,  78  Me.  490,  83 

State  v.  Baptiste,  26  La.  An.  264, 

256,  257 
State  v.  Barber,  2  Kan.  App.  679,  306 
State  v.  Barfield,  8  Ired.  (N.  Car.) 

314,  336 

State  v.  Barham,  82  Mo.  67,  150 


TABLE    OF    CASES. 


lxxix 


[References  are  to  Pages."] 


State  v 
State  v. 
State  v 
State  v 

State  v 
State  v 

Shite  v 

State  v 
State  v 
State  v 
State  v 


Barnes,  32  Me.  530,  424 

Burnett,  34  W.  Va.  74,        544 
Barr,  11  Wash.  481,  104 

Barringer,  114  N.  Car.  840, 

547 
Barrett,  40  Minn. 65,   291,295 


State  v.  Biggerstaff,  17  Mont.  510, 

125,  395 
Bigelow  (Iowa,  1897),  70 


Barron,  37  Vt.  57,  152 

Barrows,  7(1  Me.  401,  87 

Bartlett,  55  Me.  200,  72 

Bartlett,  11  Vt.  650,  358 

Bartley,  48  Kan.  421,  331 
Bassett,  34  La.  An.  1108, 

44,  356 

State  v.  Batchelder,  5  N.  H.  549,  367 
State  v.  Bateman,  3  Ired.  (N.  Car.) 

Law  474,  483 

State  v.  Bates,  23  Iowa  96,  510,  511 
State  v.  Bates,  46  La.  An.  849,  108 
State  v.  Bauerkemper  (Iowa,  1897), 

64  N.  W.  Kep.  609, 

263,  452,  453,  455 

State  v.  Baumon,  52  Iowa  68,  491 

State  v.  Beach,  43  N.  E.  Rep. 

(Ind.)  503,  23 

State  v.  Beal,  68  Ind.  345,  81,  291 

State  v.  Beasom,  40  N.  H.  367,  510 
State  v.  Beaudet,  53  Conn.  536, 

125,  179,  396 
State  v.  Becht,  23  Minn.  411,  522 

State  v.  Bedard,  65  Vt.  278,  186,  468 
State  v.  Beebe,  13  Kan.  589,  524 

State  v.  Beebe,  17  Minn.  241,  240 

State  v.  Behrman,  114  N.  Car. 

797,  446 

State  v.  Belcher,  13  S.  Car.  459,  232 
State  v.  Bell,  49  Iowa  440,  454 

State  v.  Bell,  63  N.  Car.  99,  43 

State  v.  Belton,  24  S.  Car.  185,  392 
State  v.  Benge,  61  Iowa  658,  329 

State  v.  Benham,  7  Conn.  414,  243 
State  v.  Benner,  64  Me.  267, 

146,  232,  241,  262,  328 
State  v.  Bennett,  52  Iowa  724,  328 
State  v.  Bennett,  40  S.  Car.  308,  242 
State  v.  Benson,  22  Kan.  471,  46 

State  v.  Benson,  110  Mo.  118,  500 

State  v.  Benson,  8  Minn.  424,  571 

State  v.  Berkley,  92  Mo.  41, 

310,  330,  331 

State  v.  Berlin,  42  Mo.  572,  446 
State  v.  Bernard,  45  Iowa  234,  •  232 
State  v.  Bertin,  24  La.  An.  46, 

282,  283 

State  v.  Best,  111  N.  Car.  638,  241 

State  v.  Bias,  37  La.  An.  259,  542 

State  v.  Bibb,  68  Mo.  286,  484 

State  v.  Bibbv,  91  Cal.  470,  493 

State  v.  Bichel,  39  Iowa  42,  532 


State  v. 
N.  W 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 

State  v. 
State  v. 
State  v. 
State  v. 

242, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

S.  W. 
State  v. 
State  v. 
State  v. 
State  v. 

209, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

181, 
State  v. 

463, 
State  v. 

State  v. 
State  v. 

State  v 
State  v 

State  v 


Rep.  600,  119 

Bird  well,  36  La.  An.  859,  391 
Bishop,  98  N.  Car.  773,  145 
Bishop,  73  N.  Car.  44,  178 
Black,  42  La.  An.  861, 

130,  131,  136,  137,  266 
Blackburn,  61  Ark.  407, 

587,  588 
Blackburn,  80  N .  Car.  474,  129 
Blackwell,  9  Ala.  79,  416 

Blaisdell,  33  N.  H.  388,  256 
Blalock,  Phil.   (N.  Car.) 


257 
485 
527 
421 
97 
441 


Blanchard,  74  Iowa  628, 
Blize,  111  Mo.  464, 
Bloedow,  45  Wis.  279, 
Bloom,  68  Ind.  54, 
Blue,  136  Mo.  41,  17, 

Blunt,  59  Iowa  468,      189,  190 
Bobbst,  131  Mo.  328,  401,  408 
Bockstruck  (Mo.,  1897),  38 
Rep.  317,  537 

Bodekee,  34  Iowa  520,  18 

Boban,  15  Kan.  407,  135 

Bokien,  14  Wash.  403,        502 
Boswell,  2  Dev.  (N.  Car.) 

292,  293 
Bourne,  21  Ore.  218,  308 

Bowen,  16  Kan.  475,  28 

Bowman,  78  N.  Car.  509,    378 
Boyd,  34  Neb.  435,  514 

Boyd,  2  Hill  (S.  Car.)  288, 

37,  232 
Bover,  79  Iowa  330,  532 

Boyland,  24  Kan.  186,         108 
Brabham,  108  N.  Car.  793, 

58,  375,  383 
Bradley,  90  Mo.  160,  329 

Bradley,  34  S.  Car.  136,      373 
Bradley,  64  Vt.  466, 

147,  397,  398 
Brady,  44  Kan.  435,  424 

Brame,  61  Minn.  101,  346 

Brandenburgh,  118  Mo. 

102,  453 
Brandon,  8  Jones  (N.  Car.) 

193,  197 
Branham,  13  S.  Car.  389, 

51,  168 
Brant,  14  Iowa  180,  368 

Brassfiled,  81  Mo.  151, 

450,  452 
.  Brecht,  41  Minn.  50,   444,  445 
Breckenridge,  67  Iowa  204, 

53,  488,  490 
Breskamp,  87  Iowa  588,       29 


lxxx 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


State  v. 
State  v. 
State  v. 
State  v. 

Stale  V. 

State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 

State  v. 

96, 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

Rep. 
State  v. 

Rep. 
State  v. 

593, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 


Brett,  16  Mont.  360,  483 

,  Brewer,  38  S.  Car.  263,  587 
Brick,2  Harr.  (Del.)530,  367 
Bridges,  29  Kan.  138,  17 

,  Bridgman,  49  Vt.202, 

110,  235,444,498 
Brien,  32  N.  J.  Law  414,  88 
Briggs,  9R.  I.  361,  235,444 
Brigman,  94  N.  Car.  888, 

367,  369 
Brin,  30  Minn.  522,  354 

Brink,  68  Vt.  659,  444 

Brinkhaus,  34  Minn.  285,  449 
Britt,  78  N.  Car.  439, 

589,  591,592 
Britt,  3  Dev.  (N.  Car.)  112,  489 
Brit  tain,  117  N.  Car.  783,  233 
Brodnax,  91  N.  Car.  543,  543 
Brooks,  85  Iowa  366,  348,350 
Brooks,  92  Mo.  542, 

149,  150,  169 
Brookshire,  2  Ala.  303,        277 

Broughton,  7Ired.  (N.Car.) 

145,,  239 
Brown,  85  Iowa  366,  347 

Brown,  54  Kan.  71,  478 

Brown,  55  Kan.  611,  359 

Brown,  55  Kan.  766,  479,480 
Brown,  28  La.  An.  279,  237 
Brown,  63  Mo.  439,  387 

Brown,  73  Mo.  631,  165,  387 
Brown,  47  Ohio  St.  102, 

456,  457,  458 
Brown,  28  Ore.  147,  119,  306 
Brown,  34  S.  Car.  41,  100,  101 
Brown  (Iowa),  69  N.  W. 

277,  297 

Brown  (Del.,  1897),36Atl. 

458,  214,  251 

Brownfield,  15  Mo.  App. 


84 

85 

365 

587 

347 


Brownlee,  84  Iowa  478 
Brace,  106  N.  Car.  792, 
Branson,  38  S.  Car.  263 
Bryan,  40  Iowa  379, 
Bryan,  34  Kan.  63,      453,  454 
Bryant,  134  Mo.  246,  73 

Buckles,  26  Kan.  237,  42,  255 
Bucklev,  40  Conn.  256,  19 

B  u  ffi  n  gton ,  20  Kan .  599,     234 
Bulla,  89  Mo.  585,  78 

Bullinger,  ,54  Mo.  142,        458 
Bunker,  7  S.  Dak.  639, 

587,  589 
Burgdorf,  53  Mo.  65,  477 

Burgess,  74  N.  Car.  272,      354 
Burk,  88  Iowa  661,  108 

Burnett,  119  Ind.  392,  504 

Burns,  48  Mo.  438,    29,  45,  46 


State  v.  Burns,  54  Mo.  274,  330 

State  v.  Burwell,  34  Kan.  312,  329 
State  v.  Bush,  122  Ind.  42,  426,  427 
State  v.  Buster  (Neb.,  1897),  47 

Pac.  Rep.  194,  181 

State  v.  Butler,  24  S.  E.  Rep.  991,  304 
State  v.  Butler,  67  Mo.  59,  310 

State  v.  Byers,  16  Mont.  565,  320,  550 
State  v.  Byers,  100  N.  Car.  512,  306 
State  v.  Byrne,  47  Conn.  465, 

469,  470,  471 
State  v.Cadotte,  17  Mont.  315,  60,  254 
State  v.  Cagle,  114  N.  Car.  835,  587 
State  v.  Cain,  1  Hawks  (N.  Car.) 

352,  38 

State  v.  Cain.  9  W.  Va.  559,  50 

State  v.  Caldwell,  115  N.  Car.  794,  132 
State  v.  Caligari,  41  La.  An.  578,  296 
State  v.  Calkins,  73  Iowa  128,  30,  493 
State  v.  Call,  48  N.  H.  126,  506 

State  v.  Cameron,  40  Vt.  555,  83,  84 
State  v.  Camley,  67  Vt.  322,  529 

State  v.  Campbell,  115  Mo.  391,  581 
State  v.  Campbell,  20  Nev.  122, 

468,  480 
State  v.  Campbell,  35  S.  Car.  28,  394 
State  v.  Campbell,  1  Rich. (S.  Car.) 

124,  323 

State  v.  Cannon  (S.  Car.),  27  S. 

E.  Rep.  526,  340 

State  v.  Cardelli,  19  Nev.  319,  61 

State  v.  Cardozo,  11  S.  Car.  195, 

276,  553 
State  v.  Carev.  56  Kan.  84,  121 

State  v.  Carkm  (Maine,  1897), 37 

Atl.  Rep.  878,  346 

State  v.  Carlton,  48  Vt.  636,  121,  394 
State  v.  Carpenter,  20  Vt.  9,  313,  314 
State  v.  Carpenter,  54  Vt.  551,  510 
State  v.  Carr,  28  Ore.  389,  93 

State  v.  Carr,  37  Vt.  191 ,  165 

State  v.  Carroll,  85  Iowa  1,  166 

State  v.  Carroll,  30  S.  Car.  85,  154 

State  v.  Carron,  18  Iowa  372,  456 

State  v.  Carson,  36  So.  Car.  524, 

160,  173,  550 
State  v.  Carter  (S.  Car.,  1897),  27 

S.  E.  Rep.  106,  429 

State  v.  Carver,  89  Maine  74,  417 

State  v.  Casados,  1  N.  &  McC.  91,  354 
State  v.    Case    (Iowa,    1897),   65 

N.  W.  Rep.  149,  271,276 

State  v.  Cassidy,  85  Iowa  145,  470,  480 
State  v.  Castor,  93  Mo.  242,  361 

State  v.  Cater,  69  N.  W.  Rep.  880, 

295,  373 
State  v.  Cay  wood  (Iowa,  1896),  65 

N.  W.  Rep.  385,  526 

State  v.  Cecil,  54  Md.  426,  323 


TABLE    OF    CASES. 


lxxxi 


[References  ar 

State  v.  Center,  35  Vt.  378,  135,  233 
State  v.  Chamberlain,  80  Mo.  133,  270 
State  v.  Chamberlain,  89  Mo.  L29,  78 
State  v.  Chambers,  39  Iowa  179,  164 
State  v.    Chambers,   43   La.    An. 

1108,  584 

state  v.  Chambers,  45  La.  An.  36,  160 
State  v.  Chandler,  90   End.  591, 

443,  447 
State  v.  Chandler,  132  Mo.  155,  1 17 
State  v.  Charity,  2  Dev.  (N.  C.) 

543,  217 

State  v.  Chase,  97  Hun  297,  131 

State  v.  Chase,  68  Vt.  405,  148,  385 
State  v.  Chavis,  80  N.  Car.  405,  381 
State  v.  Chee  Gong,   16  Ore.  435, 

184,  190 
State  v.  Child,  40  Kan.  482,  187 

State  v.  Chiles,  44  S.  Car.  338,  373 
State  v.  Chinault,  55  Kan.  326,  245 
State  v.  Chippev,  9  Houst.  (Del.) 

583,  "  543 

State  v.  Chisenhall,  106  N.  Car. 

676,  160 

State  v.  Chisnell,  36  W.  Va.  659,  83 
State  v.  Christian,  44  La.  An.  950,  292 
State   v.  Christmas,  101    N.  Car. 

749.  440 

State  v.  Church,  63  N.  Car.  15, 

416,  417 
State  v.  Chyo  Chiagk,  92  Mo.  395, 

88,  248 
State  v.  City  of  Camden,  48  N.  J.  L. 

89,  34 

State  v.  Clark,  69  Iowa  294,  468,  469 
State  v.  Clark,  46  Kan.  65,  500 

State  v.  Clark,  54  N.  H.  456, 

444,  445,  446,  461 
State  v.  Clark,  15  So.  Car.  403, 

372,  373 
State  v.  Claude,  35  La.  An.  71,  386 
State  v.  Clawson,  30  Mo.  App.  139, 

292 
State  v.  Clements,  15  Ore.  237,  411 
State  v.  Clinton,  67  Mo.  380,  493 

State  v.  Clvburn,  16  So.  Car.  375,  276 
State  v.  Clyne,  53  Kan.  8,-  425 

State  v.  Coatney,  8  Yerg.  (Tenn.) 

210,  597 

State  v.  Cobbs  (W.  Va.,  1895),  22 

S.  E.  Rep.  310,  241 

State  v.  Coella,  3  Wash.  St.  99,  390 
State  v.  Coffev,  44  Mo.  App.  455,  292 
State  v.  Cohn,  9  Nev.  197, . 

76,  79,  81,  431 

State  v.  Colby,  51  Vt.  291,  445 

State  v.  Cole,  90  Ind.  112,  368 

State  v.  Cole,  19  Wis.  129,        496,  497 

vi— Cr.  Ev. 


'e  to  Pages."] 

State  v.  Coleman,  20  So.  Car.  441, 

196,  197,  198 
State  v.  Coley,  114  N.  Car.  879,        102 
State  v.  Collins,  32  Iowa  36, 
State  v.  Collins,  20  Iowa  85,  232 

State  v.  Collins,  72  N.  Car.  144,  356 
State  v.  Collins,  115  X.  Car.  716,  484 
Stale  v.  Colwell,  3  K.I.  132,  267 

State  v.  Comeau,  48  La.  An.  249,  239 
State  v.  Compagnet,  48  La.  An. 

1470,  392 

State  v.  Conable.  81  Iowa  60,  425 

State  v.  Cone,  1  Jones  (N.  Car.) 

18,  478 

State  v.  Conerly,  48  La.  An.  1561,  297 
State  v.  Congdon,  14  R.  I.  267,  283 
State  v.  Connelly,  57  Minn.  482,  474 
State  v.  Conners  (Iowa,  1896),  64 

N.  W.  Rep.  295,  435 

State  v.  Conway,  56  Kan.  682, 

31,  184,  441 
State  v.  Cook,  17  Kan.  392,  378 

State  v.  Cook,  65  Iowa  560,  479 

State  v.  Cooper,  33  La  An.  1084,  397 
State  v.  Cooper,  22  N.  J.  L.  52,  409 
State  v.  Cooper,  71  N.  W.  Rep. 

197,  348 

State  v.  Cooper,  103  Mo.  266,  462,  463 
State  v.  Copp,  15  N.  H.  212,  520 

State  v.  Covington,    94  N.  Car. 

913,  491 

State  v.  Cowan,  74  Iowa  53,  349 

State  v.  Cowan,  7  Ired.  (N.  Car.) 

239,  177 

State  v.  Crabtree,  111  Mo.  136, 

133,  392 
State  v.  Craemer,  12  Wash.  217, 

375,  400 
State  v.  Crafton,  89  Iowa  100,  396 

State  v.  Craine  (N.  Car.,  1897),  27 

S.  E.  Rep.  72,  133,  140 

State  v.  Crank,  2  Bauly  (S.  Car.) 

66,  172 

State  v.  Crawford,  34  Iowa  40,  452 
State  v.  Crawford,  99  Mo.  77, 

430,  432,  580 
State  v.  Crawford,  2  Dev.  (N.  Car.) 

425,  422 

State  v.  Crawford,  39  S.  Car.  343, 

108, 111 
State  v.  Creson,  38  Mo.  372,  98 

State  v.  Crogan,  8  Iowa  523,  534 

State  v.  Cronin,  64  Conn.  293, 

129,  130,  145 
State  v.  Cross,  68  Iowa  180,  391 

State  v.  Cross  (Iowa,  1896),  64 

X.  W.  Rep.  614,  362,  478 

State  v.  Croteau,  23  Vt.  14,  334 

State  v.  Crow,  53  Kan.  662,  34 


lxxxii 


TABLE    OF    CASES. 


[Beferences  are  to  Pages.'] 


State  v.  Crow,  107  Mo.  341, 

59,  296,  358 
State  v.  dwell,  116  N.  Car.  1052,  449 
Btate  v.  Crowley,  13  Ala.  172,  445 

State  v.  Cummins,  76  Iowa  133, 

26,  288 
State  v.  Cunningham,  100  Mo.  382, 

466,  467 
State  v.   Cm-ran,  51  Iowa  112,  450 

Slate  v.  dishing,  14  Wash.  527, 

376,  390 
State  v.  Daley,  53  Vt.  442,  124,  352 
State  v.  Dalton,  106  Mo.  463,  476 

State   v.    Dalton,    2   Murph. 

(N.  Car.)  123,  495 

State  v.  Dalton  (R.  I.,  1897),  37 

A tl.  Rep.  773,  130,259 

State  v.  Dana,  59  Vt.  614,  458 

State  v.  Dancy,  83  N.  Car.  608,  467 
State  v.  Danforth,  48  Iowa  43, 

448,  473,  590 
State  v.  Daniel,  31  La.  An.  91, 

129,  133 
State  v.  Daniel  (La.,  1897),  22  So. 

Rep.  415,  331 

State  v.  Daniel,  87  N.  Car.  507,  479 
State  v.  Daniel,  114  N.  Car.  823,  503 
State  v.  Darnell,  1  Houst.  (Del.) 

321,  175 

State  v.  Daugherty,  17  Nev.  376,  121 
State  v.  Davenport,  38  S.  Car.  348,  9 
State  v.  David,  131  Mo.  380, 

9,  17,  166,  493,  494 
State  v.  David,  14  S.  Car.  428,  284 

State  v.  Davidson.  77  N.  Car.  552,  232 
State  v.  Davidson,  44  Mo.  App.  513,  17 
State  v.  Davidson,  30  Vt.  377  ,  11 

State  v.  Davis, 9  Houst.  (Del.)  407,  380 
State  v.  Davis,  41  Iowa  311,  238 

State  v.  Davis,  48  Kan.  1,  277 

State  v.  Davis,  34  La.  An.  351,  162 
State  v.  Davis,  14  Nev.  439,  525 

State  v.  Davis,  I  Ired.  (N.  Car.) 

125,  416,  417 

State  v.  Davis,  2  Ired.  (N.  Car.) 

153,  369 

State  v.  Davis,  69  N.  Car.  313,  490 
State  v.  Davis,  77  N.  Car.  483, 

125,  396 
State  v.  Davis,  109  N.  Car.  780,  196 
State  v.  Dawkins,  32  S.  Car.  17,  436 
State  v.  Dawkins,  90  Mo.  149,  215 

State  v.  Deal,  64  N.  Car.  270,  421 

State  v.  Dean,  13  Ired.  (N.  Car.) 

63,  552 

State  v.  De  Berry,  92  N.  Car.  800,  147 
State  v.  De  Boy,  117  N.  Car.  702,  531 
State  v.  Decklotts,  19  Iowa  447,       380 


State  v.  Dehart,  6  Baxt.  (Tenn.) 

222, 
State  v. 
State  v. 

502, 
State  v. 
State  v. 


Dei  trick,  51  Iowa  467,  448, 
Delaneuville,  48  La.  An. 


Denareste,  41  La.  An.  617, 
Depoister,  21  Nev.  107, 

221,  227, 
State  v.  Desroches,  48  La.  An.  428 

40, 
Dettmer,  124  Mo.  426, 
Dewitt,  2  Hill  (S.  Car.) 


State  v. 
State  v. 

282, 
State  v. 


De  Wolf,  8  Conn.  93, 

56,  71, 
State  v.  Deyoe  (Iowa,  1896)^66 

N.  W.  Rep.  733, 
State  v.  Dickerson,  98  N.  Car.  708. 
State  v.  Dickinson,  41  Wis.  209, 
State  v.  Dickson,  78  Mo.  438, 
State  v.  Dill  (S.  Car.,  1896),  26 

S.  E.  Rep.  567,  103, 

State  v.  Dilley,  15  Ore.  70, 
State  v.  Dillon,  48  La.  An.  1365, 
State  v.  Dineen,  10  Minn.  407,     11 
State  v.  Diskin,  34  La.  An.  219, 
State  v.  Dixon,  32  Kan.  205, 
State  v.  Dixon,  47  La.  An.  1, 
State  v.  Dockstader,  42  Iowa  436, 
State  v.  Dodson,  4  Ore.  64, 
State  v.  Dodson,  16  S.  Car.  453, 

256, 
State  v.  Doe,  79  Ind.  497, 
State  v.  Dole,  3  Blackf.   (Ind.) 

294, 
State  v.  Donavan,  61  Iowa  369, 

207,  208, 
State  v.  Donelon,  45  La.  An.  744, 

38 
State  v.  Donnelly,  130  Mo.  642, 

10,  90, 
State  v.  Donohoe,  78  Iowa  486, 
State  v.  Donohoo,  22  W.  Va.  761, 
State  v.  Dooris,  40  Conn.  145, 
State  v.  Dorr,  82  Me.  212, 
State  v.  Douglass,  48  Mo.  App. 

39, 
State  v.  Douglass,  20  W.  Va.  770, 
State  v.  Douglass,  28  W.  Va.  297, 
State  v.  Downer,  8  Vt.  424, 
State  v.  Downs,  91  Mo.  19, 

77   388 
State  v.  Drake,  82  N.  Car.  592, 
State  v.  Draper,  65  Mo.  335, 
State  v.  Dudley,  7  Wis.  664,     234, 
State  v.  Duestrow  (Mo.,  1897),  38 

S.  W.  Rep.  554, 
State  v.  Duffy,  57  Conn.  525. 

238,261, 


504 
454 

294 
168 

476 

'l09 
327 

326 

253 

361 

417 

134 

11 

386 
276 
362 
,  20 
155 
193 
328 
95 
389 

552 

369 

534 

444 

103 

383 
400 

95 
463 

43 

407 
215 
381 
510 

390 
165 
137 
235 

385 


TABLE    OF    CASES. 


lxxxiii 


[References  ar 

State  v.  Duffy,  124  Mo.  1,  473,  552 
State  v.  Duharnmel,  2   Harr. 

(Del.)  532,  519 

State  v.  Dumphey,  4  Minn.  438,  386 
State  v.  Duncan,  116  Mo.  288, 

125,  148,  178,278 
State  v.  Dunlap,  24  Me.  77,  505 

State  v.  Dunlop,  65  N.  Car.  288,  86 
State  v.  Dunn,  33  Mich.  112,  455 

State  v.  Dunwell,  3  R.  I.  127,  29 

State  v.  Dupont,  2  McCord  (S.Car.) 

334,  541 

State  v.  Dusenberry,  112  Mo.  277, 

241,  329,  474,  477 
State  v.  Dnstin,  5  Oregon  375,  516 

State  v.  Dyer,  59  Me.  303,  232,  236 
State  v.  Dver  (Mo.,  1897),  40  S.W. 

Rep.  768,  81 

State  v.  Eades,  68  Mo.  150,  485 

State  v.  Ean,  90  Iowa  534,  444 

State  v.  Earl.  41  Ind.  464,  521 

State  v.  Earnest,  56  Karnn.  31,  380 
State  v.  Eberline,  47  Kan.  155, 

467,  478,  479 
State  v.  Eckler,  106  Mo.  585,  451 

State  v.  Eddon,  8  Wash.  292,  36 

Pac.  Rep.  139,  137 

State  v.  Edwards,  13  So.  Car.  30,  99 
State  v.  Eisenhour,  132  Mo.  140,  452 
State  v.  Elden,  41  Me.  165,  243 

State  v.  Elkins,  101  Mo.  344,  130,  136 
State  v.  Elliott,  45  Iowa  486,  128 

State  v.  Ellis,  74  Mo.  395,  457 

State  v.  Ellis,  101  N.  Car.  765,  394 
State  v.  Ellis,  33  N.  J.  L.  102,  513 

State  v..  Ell  wood,  17  R.  I.  763,  64,  98 
State  v.  Elsham,  70  Iowa  531, 

8,  10,  273 
State  v.  Emery,  59  Vt.  84,  96,  105,  430 
State  v.  England,  78  N.  Car.  552,  431 
State  v.  Enright,  90  Iowa  520,  467 

State  v.  Enslow,  10  Iowa  115,  368 

State  v.  Espinozei,  20  Nev.  209,  98 
State   v.   Evans   (Mo.,   1897)   39 

S.  W.  Rep.  462,  148,  231,  471 

State  v.  Evans,  65  Mo.  574,  381 

State  v.  Evans,  1  Hay  w.  (N.  Car.) 

281,  421 

State  v.  Evans,  124  Mo.  397,  131,  132 
State  v.  Ezekial,  33  S.  Car.  115,  493 
State  v.  Faile,  41  S.  Car.  551,  '  129 
State  v.  Faile,  43  S.  Car.  52,  390 

State  v.  Fain,  106  N.  Car.  760,  349 

State  v.  Falconer,  70  Iowa  416,  828 
State  v.  Falk,  66  Conn.  250,  531 

State  v.  Farley,  87  Iowa  22,  29,  45,  266 
State  v.  Farmer,  84  Me.  436, 

77,  78,  302 
State  v.  Farrell,  82  Iowa  553,  306 


e  to  Pages.'] 

State  v.  Farrier,  1  Hawks  (N.Car.) 

487,  541 

State  v.  Farrington,  90  Iowa  673, 

271,  484,  493,  494 
State  v.  Fasset,  16  Conn.  458, 

37,  40,  240 
State  v.  Fellows,  50  Wis.  65,  444 

State  v.  Felter,  32  Iowa  49,  195,  198 
State  v.  Feltes,  51  Iowa  495,  171 

State  v.  Fenlason,  78  Me.  495, 

186,  187,  188,431 
State  v.  Ferguson,  107  N.  Car. 

841,  55 

State  v.  Fidment,  25  Ohio  St.  464,  162 
State  v.  Field,  14  Me.  244,  386 

State  v.  Fields,  118  Ind.  491,  501 

State  v.  Fifield,  18  N.  H.  34,  511 

State  v.  Finch,  70  Iowa  316,  358 

State  v.  Findley,  101  Mo.  217, 

348,  351 
State  v.  Finlev,  118  N.  Car.  1161,  142 
State  v.  Fiske,  63  Conn.  388,  207 

State  v.  Fitzgerald,  49  Iowa  260,  410 
State  v.  Fitzgerald,  63  Iowa  268, 

148,  150,  323,  449,  451 
State  v.  Fitzgerald,  20  Mo.  App. 

408,  424 

State  v.  Fitzgerald,  130  Mo.  407, 

373,  376 
State  v.  Fitzgerald,  68  Vt.  125,  218 
State  v.  Fitzpatrick,  9  Houst. 

(Del.)  383,  352 

State  v.  Fitzsimmons,  30  Mo.  236,  277 
State  v.  Fitzsimon,  18  R.  I.  236, 

439,  469,  480 
State  v.  Flanagin,  25  Ark.  92,  155 

State  v.  Flanders,  118  Mo.  227,  490 
State  v.  Fleshman,  40  W.  Va. 

726,  484 

State  v.  Fletcher,  24  Ore.  295, 

178,  266 
State  v.  Flint,  60  Vt.  304, 

186,  297,  298 
State  v.  Floyd,5  Strobh. (N.Car.) 

491,  483 

State  v.  Five,  26  Me.  312,  193,  483 

State  v.  Flvnn,  28  Iowa  26,  367,  368 
State  v.  Foley,  81  Iowa  36,  347 

State  v.  Folev,  15  Nev.  64,  256 

State  v.  Folwell,  14  Kan.  105,  109 

State  v.  Fontenot,  48  La.  An.  305, 

112.  151,  382,385,389 
State  v.  Foot  You,  24  Ore.  61,  33 

Pac.  Rep.  537,  137 

State  v.  Fooks,  65  Iowa  196,  166,  506 
State  v.  Ford,  2  Root  (Conn.)  93,  490 
State  v.  Ford,  37  La.  An.  443,  550 

State  v.  Ford,  3  Strobh.  (S.  Car.) 

517,  100 


lxxxiv 


TADLK    OF    CASES. 


388, 


State  v.  Ford,  37  La.  An.  343, 

387 
State  v.  Forschner,  43  N.  H.  89, 

478,  479 
Slate  v.  Forsythe,  78  Iowa  595,        413 
State  v.  Forsythe  (Iowa,  1896), 
68  N.  \V.  Rep.  446,  295,  467 


148 
34 


State  v.  Fortner,  43  Iowa  494, 
State  v.  Foster,  79  Iowa  726, 
State  v.  Foster,  91  Iowa  164, 
State  v.  Foster  (Mo.,  1897),  38  S 

W.  Rep.  721, 
State  v.  Foster,  23  N.  H.  348, 
State  v.  Fournier,  68  Vt.  262,  372,  374 
State  v.  Fowler,  52  Iowa  103,  37 

State  v.  Fox,  80  Iowa  312,  440 

State  v.  Frahm,  73  Iowa  355,  441 

State  v.  Frazier,  1  Houst.  (Del.) 

176,  121,  394 

State  v.  Frederic,  69  Me.  400,  150,  325 
State  v.  Fredericks,  85  Mo.  145,  169 
State  v.  Freeman,  8  Iowa  428,  511 

State  v.  Freeman,  100  N.  Car.  429,  469 
State  v.  Freeman,  43  S.  Car.  105,  294 
State  v.  Freeman,  27  Vt.  523,  576 

State  v.  Freidrich,  4  Wash.  St.  204, 

326 
State  v.  Frizzell,  111  N.  Car.  722,  39 
State  v.  Froelick,  70  Iowa  603,  293 
State  v.  Froiseth,  16  Minn.  296,  37,  38 
State  v.  Fruge,  28  La.  An.  657, 
State  v.  Fruge,  44  La.  An.  165, 
State  v.  Fry,  67  Iowa  475, 
State  v.  Furney,  41  Kan.  115, 
State  v.  Gabriel,  88  Mo.  631,  118,  120 
State  v.  Gainor,  84  Iowa  209, 

109,  382,  384 

State  v.  Gardner,  1  Root  (Conn.) 

485,  235,  446 

State  v.  Gardner  (Ohio,  1896),  42 

N.  E.  Rep.  999, 
State  v.  Garner,  8  Port.  ( Ala. )  447, 
State  v.  Garrett,  71  N.  Car.  85, 
State  v.  Garvey,  28  La.  An.  925, 
State  v.  Garvey,  11  Minn.  154, 
State  v.  Garvin  (S.  Car.),  26  S.  E. 

Rep.  570,  44,  362 

State  v.  Gaston  (Iowa,  1896),  65 

N.  W.  Rep.  415, 
State  v.  Gates,  27  Minn.  52, 
State  v.  Gavigan.  36  Kan.  322, 
State  v.  Gav,  18  Mont.  51, 
State  v.  Gav,  94  N.  Car.  814, 
State  v.  Gedicke,  43  N.  J.  L.  86, 
State  v.  Gee,  92  N.  Car.  756, 
State  v.  Genz,  57  N.  J.  L.  459,  198,  201 
State  v.  Geer,  48  Kan.  752,     '  529 

State  v.  Gesell,  124  Mo.  531,  291 

State  v.  Gever,  3  Ohio  N.  P.  242,     513 


[Rpferences  are  to  Pages.] 

State  v.  Gibbs,  39  Iowa  31,  318,  240 
State  v.  Gibbs,  10  Mont.  213,  527,  529 
State  v.  Gibson,  111  Mo.  92,  408,  409 
State  v.  Gibson  (Mo.,  1896),  18  S. 

\V.  Rep.  1109,  409 

State  v.  Gilbert,  21  Ind.  474,  511 

State  v.  Gilbert,  87  N.  Car.  527, 

542,  54:; 


174 

583 

98 


280 
299 
188 
138 


514 
368 
68 
367 
207 


475 
456 
485 
130 
494 
412 
179 


State  v.  Gilbert,  68  Vt.  188,  353 

State  v.  Giles,  103  N.  Car.  391,  597 
State  v.  Gillick,  7  Iowa  287,  130 

State  v.  Gillick,  10  Iowa  98,  281 

State  v.  Oilman,  51  Me.  206,  81 

State  v.  Ginger,  80  Iowa  574,  372,  595 
State  v.  Girkin,  1  Ired.  (N.  Car.) 

121,  421 

State  v.  Giroux,  26  La.  An.  582,  140 
State  v.  Gleason,  68  Iowa  618,  584 
State  v.  Gleim,  17  Mont.  17,  16,  78 
State  v.  Glidden,  55  Conn.  46,  550 
State  v.  Glynn,  51  Vt.  577,  294 

State  v.  Godet,  7  Ired.  (N.  Car.) 

210,  43,  44,  356 

State  v.  Godfrev,  17  Ore.  300,  416,  419 
State  v.  Goetz,  34  Mo.  85,  365 

State  v.  Goforth,  136  Mo.  Ill,  236 

State  v.  Goin,  9  Hnmph.  (Tenn.) 

175,  28,  468 

State  v.  Gonce,  79  Mo.  600,  25,  463 
State  v.  Good,  132  Mo.  114,  151,  154 
State  v.  Goodbier,  48  La.  An.  770,  294 
State  v.  Gordon,  56  Kan.  64, 
State  v.  Govette,  11  R.  I.  592, 
State  v.  Grace,  18  Minn.  398, 
State  v.  Gradv,  84  Me.  220. 
State  v.  Graham,  41  N.  J.  L.  15,  £ 
State  v.  Graham,  74  N.  Car.  646, 
State  v.  Gramelspacher,  126  Ind 

398, 
State  v.  Granger,  87  Iowa  355, 
State  v.  Grant,  86  Iowa  216, 
State  v.  Grant,  22  Me.  171, 
State  v.  Grant,  76  Mo.  236, 
State  v.  Grant,  79  Mo.  113, 
State  v.  Grate,  68  Mo.  22, 
State  v.  Graves,  95  Mo.  510, 
State  v.  Graves,  13  Wash.  485, 
State  v.  Gravson,  38  La.  An.  788, 
State  v.  Grear,  28  Minn.  426, 
State  v.  Grebe,  17  Kan.  458,       85,  365 
State  v.  Green,  35  Conn.  203,  385 

State  v.  Green,  1  Houst.  Cr.  Rep. 

(Del.)  217,  391 

State  v.  Green,  117  N.  Car.  695,  343 
State  v.  Green,  40  S.  Car.  328,  438,  550 
State  v.  Green  (S.  Car.,  1897),  26 

S.  E.  Rep.  234,  182,  256 

State  v.  Green,  7  Wis.  571,  503 

State  v.  Greer,  22  W.  Va.  800,         284 


44 
28 
313 
240 
,89 
437 


514 
598 
551 
181 
553 
152,  392 
102 


310 

51 

171 


TABLE    OF    CASES. 


lxxxv 


[References  are,  to  Pages. "\ 


State  v. 
State  v. 
State  v. 
State  v. 
Statu  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 

73, 
State  v. 
State  v. 
State  v. 
State  v. 

58, 
State  v. 
State  v. 
State  v. 
State  v 

N.  W 
State  v 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

566, 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
N.  W 
State  v. 
State  v. 


Griffie,  118  Mo.  188,  44 

Griffin,  87  Mo.  608,  150 

Grimes,  101  Mo.  188,  369,428 
Griswold,  67  Conn.  290,  60 
Grinden,  91  Iowa  505,  102 
Gritzner,  134  Mo.  512,  55 

Groning,  33  Kan.  18,  442,415 
Grossheim,  79  Iowa  75,  4<>7 
Groves,  15  R.  I.  208,  538 

Grubb,  oo  Kan.  678,  476 

Gryder,  44  La.  An.  962,  484 
Guild,  10  N.  J.  L.  163,  164 
Gullette,  121  Mo.  447,  495 
Ganagy,  84  Iowa  177,  580 

Gurnee,  14  Kan.  Ill,      49,  52 


100 
207 
389 
111 
301,  302 
328 


Gustafson,  50  Iowa  194, 
Gut,  13  Minn.  341, 
Guy,  69  Mo.  430, 
Habib,  18  R.  I.  558, 
Hack,  118  Mo.  92, 
Hagan,  22  Kan.  490, 
Hahn,  38  La.  An.  169, 

486,  491,  492,  495 
Hailey,  2Strobh.  (N.  Car.) 

511 
Haines,  23  S.  Car.  170,  503 
Haines,  36  S.  Car.  504,  285 
Hair,  37  Minn.  351,  421,  422 
Halford,  6  Rich.  (S.  Car.) 

523 
Hall,  79  Iowa  674, 
Hall,  3  Ohio  N.  R.  125, 
Hall,  93  N.  Car.  571, 
Ham  (Iowa,   1896),   66 

.  Rep.  1038, 
Ham,  11  Me.  391, 
Hambleton,  22  Mo.  452, 
Hamilton,  57  Iowa  596, 

22,  187 

Hamilton,  42  La.  An.  1204,  280 
Hamlin,  47  Conn.  95,  35,  238 
Handy,  4  Harr.  (Del.) 

Handv,  20  Me.  81, 
Haney,  32  Kan.  428, 
Hanks,  39  La.  An.  234, 

580   584 
Hannibal,  53  Iowa  154,    '  337 
Hanscom,  28  Ore.  427, 
Hardin,  46  Iowa  625, 
Harkins,  100  Mo.  666, 
Harlan,  130  Mo.  381, 
Harper,  35  Ohio  St.  78, 
Harrell,  107  N.  Car.  944, 
Harriman,  75  Maine  562,    369 
Harris  (Iowa,  1896),  66 
.  Rep.  728,  421 

Harris,  34  La.  An.  118,  281 
Harris,  63  N.  Car.  1,  372 


66 

438 
429 

441 
446 
369 


467 
484 

368 


52 
188 

90 
391 
134 
547 


State  v.  Harrison,  93  N.  Car.  005,  543 
State  v.  Harrison,  115  N.  Car.  706,  169 
State  v.  Harrison,  36  W.  Va.  729, 

193,  329 
State  v.  Hart,  67  Iowa  142,  293 

State  v.  Hart  (Iowa),  64  N.  W. 

Rep.  278,  10 

State  v.  Hart,  66  Mo.  208,  40 

State  v.  Hartman,  4(5  Wis.  248,  281 
State  v.  Harvey,  131  Mo.  339, 

31,  76,  78,  184,  428 
State  v.  Hascall,  6  N.  H.  352.  528 

State  v.  Hash,  12  La.  An.  895,  165 
State  v.  Hatcher,  29  Ore.  309, 

85,  167,  168 
State  v.  Hatfield,  75  Iowa  592,  474 
State  v.  Havel v,  21  Mo.  498,  44 

State  v.  Hawks,  56  Minn.  129,  39 

State  v.  Hawley,  63  Conn.  47,  396 

State  v.  Hayden,  45  Iowa  11, 

20,21,  240,  330 
State  v.  Hayden,  15  N.  H.  355,  496 
State  v.  Hayden,  51  Vt.  296,  202,  204 
State  v.  Hayes,  78  Mo.  307,  295 

State  v.  Haves,  105  Mo.  76,  436 

State  v.  Hayes  (Utah,  1897),  46 

Pac.  Rep.  752,  382 

State  v.  Haynes,  91  N.  Car.  79, 

178,  396 
State  v.  Haynes,  35  Vt.  570,  576 

State  v.  Hay  ward,  62  Minn.  474, 

108,  265,  272 
State  v.  Hazleton,  15  La.  An.  72, 

215,  222 
State  v.  Head,  38  So.  Car.  258,  168 
State  v.  Heath,  41  Tex.  426,  368 

State  v.  Heatherton,  60  Iowa  175,  449 
State  v.  Hedgepeth,  125  Mo.  14,  217 
State  v.  Heed,  57  Mo.  252,  527 

State  v.  Heflin,  8  Humph.  (Tenn.) 

84, 
State  v.  Heinze,  2  Mo.  App.  1314, 
State  v.  Helm,  92  Iowa  540, 
State  v.  Helm  (Iowa,  1896),  66 

N.  W.  Rep.  751,  77 

State  v.  Hemm,  82  Iowa  609,  456 

State  v.  Henderson,  84  Iowa  161,  444 
State  v.  Henderson,  29  W.  Va.  147, 

483 
State  v.  Hendrix,  45  La.  An.  500,  584 
State  v.  Henn,  39  Minn.  476,  419 

State  v.  Henry,  5  Jones  (N.  Car.) 

65,  100 

State  v.  Herman,  13  Ired.  (N.  Car.) 

502,  592 

State  v.  Hert,  89  Mo.  590,  474 

State  v.  Hice,  117  N.  Car.  782,  96 

State  v.  Hickerson,  72  N.  Car.  421, 

588 


547 

25 

390 


lxxxvi 


TABLE    OF    CASKS. 


[Beferences  are  to  Pages.] 


State  v.  Hicks,  92  Mo.  431,  124 

Stat.-  v.  Hicka,  20  So.  Car.  341,  274 
State  v.  Bigdon,  32  Iowa  262, 

407,  451,  455 
State  v.  Hill,  43  Ala.  335,  370 

State  v.  Hill  (Iowa,  1897),  66 

N.  W.  Rep.  725,  580 

State  v.  Hill,  46  La.  An.  27,  34,  207 
State  v.  Hill,  72  Me.  238,  501,  506 

State  v.  Hill,  65  Mo.  84,  356 

State  v.  Hill,  91  Mo.  423,  450,  451 

State  v.  Hill,  134  Mo.  663, 

144,  146,  456 
State  v.  Hill,  47  Neb.  456,  348 

State  v.  Hillstock,  45  La.  An.  298,  31f 
State  v.  Hilsabeck,  132  Mo.  348,  301 
State  v.  Hilton,  26  Mo.  199,  510 

State  v.  Hilton,  3  Rich.  (S.  Car.) 

434,  462 

State  v.  Hinkle,  6  Iowa  380,  378 

State  v.  Hines,  68  Me.  202,  576 

State  v.  Hinson,  103  N.  Car.  374,  427 
State  v.  Hirsch,  45  Mo.  App.  429, 

31,  34 
State  v.  Hobbs,  37  W.  Va.  812,  45* 

State  v.  Hobgood,  46  La.  An.  855,  302 
State  v.  Hockett,  70  Iowa  442, 

93,  204,  381 
State  v.  Hodge,  50  N.  H.  510,  360 

State  v.  Hodgkins,  42  N.  H.  474,  244 
State  v.  Hodgskin  19  Me.  155, 

446,  461 
State  v.  Hodgson,  66  Vt.  134,  571 

State  v.  Hoffman.  53  Kan.  700,  360 
State  v.  Hogard,  12  Minn.  293,  362 
State  v.  Holcomb,  86  Mo.  371,  394 

State  v.  Hollaway,  117  N.  Car.  730,  74 
State  v.  Hollenbeck,  67  Vt.  34, 

478,  479 
State  v.  Hollenscbeit,  61  Mo.  302,  182 
State  v.  Hollier  (La.,  1897),  21  So. 

Rep.  633,  581 

State  v.  Hollon,  22  Kan.  580,  524 

State  v.  Hollyway,  41  Iowa  200,  421 
State  v.  Holmes,  (Mich.)  68  N.  W. 

Rep.  11,  347 

State  v.  Holmes  (Minn.,  1897), 

68  N.  W.  Rep.  11,  83,  84,  100 

State  v.  Holt,  84  Me.  509,  314,  511 
State  v.  Hooper,  2  Bailey  (S.  Car.) 

37,  483,  484,  494 

State  v.  Hope,  102  Mo.  410,  341 

State  v.  Hopkins  (Iowa),  62  N. 

W.  Rep.  656,  45 

State  v.  Hopkins,  50  Vt.  316, 

278,  346,  354,  494 
State  v.  Hopper,  71  Mo.  425,  281 

State  v.  Hooker,  17  Vt.  658,  320,  324 
State  v.  Horan,  32  Minn.  394,  119 


State  v.  Home,  9  Kan.  119, 

79  386   394 
State  v.  Horner  (Del.,  1893) ,'26 

All.  Rep.  73,  512 

State  v.  Horner,  48  Mo.  520,  489 

State  v.  Hornsby,  9  Rob.  (La.) 

554,  309,  310 

State  v.  Horton,  63  N.  Car.  595,  293 
State  v.  Horton,  100  N.  Car.  443, 

448,  589 
State  v.  House,  55  Iowa  466,  508 

State  v.  House woth,  91  Iowa  740,  217 
State  v.  Houston,  3  Harr.  (Del.) 

15,  218 

State  v.  Houston,  1  Baily  (S.  Car.) 

Law  303,  487 

State  v.  Houx,  109  Mo.  654,  408 

State  v.  Howard  (Mo.,  1897),  38 

S.  W.  Rep.  908,  529 

State  v.  Howard,  102  Mo.  142,  154 
State  v.  Howard,  118  Mo.  127,  253 
State  v.  Howard,  35  S.  Car.  197, 

162,  270 
State  v.  Howard,  32  Vt.  380,  459 

State  v.  Howell,  100  Mo.  628,  187,  188 
State  v.  Howell,  117  Mo.  307,  148 

State  v.  Howell,  9  Ired.  (N.  Car.) 

485,  381 

State  v.  Hoyt,  47  Conn.  518, 

23,  201,  391,  392 
State  v.  Hudson,  7  Cranch  32,  520 
State  v.  Huff,  76  Iowa  200,  276 

State  v.  Huff,  11  Nev.  17,  77 

State  v.  Hughes,  58  Iowa  165,  459 
State  v.  Hughes,  35  Kan.  626,  462 

State  v.  Hull,  83  Iowa  112,  431 

State  v.  Humble,  34  Mo.  App.  343,  43 
State  v.  Hunsar,  16  Ore.  497,  294 

State  v.  Hunter,  50  Kan.  302,  8,  9 

State  v.  Hunter,  94  N.  Car.  829,  523 
State  v.  Huntley,  3  Ired.  (N.  Car.) 

418,  541 

State  v.  Huntley,  91  N.  Car.  617,  419 
State  v.  Hurd  (Iowa,  1897),  70  N. 

W.  Rep.  613,  457,  458 

State  v.  Hussey,  7  Iowa  409,  473,  509 
State  v.  Hutchison  (Iowa,  1895). 

64  N.  W.  Rep.  610,  70,  409 
State  v.  Hutchinson,  111  Mo.  257,  436 
State  v.  Hyer,  39  N.  J.  L.  598,  94 
State  v.  Hymer,  15  Nev.  49,  391 
State  v.  Ihrig,  106  Mo.  267,  73 
State  v.  Isaacson  (S.  Dak.,  1897), 

65  N.  W.  Rep.  430,  286 
State  v.  Isham,  6  How.  (Miss.)  35, 

217 
State  v  Jackson,  12  La.  An.  679,  386 
State  v.  Jackson,  44  La.  An.  160,    293 


TABLE    OF    CASES. 


lxxxvii 


[References  are  to  Pages."] 


State  v.  Jackson,  30  Me.  29, 

42,  292, 
Jackson,  73  Me.  91, 
Jackson,  17  Mo.  544, 
Jackson,  106  Mo.  174,    88 
Jackson,  112  Mo.  585, 
Jacobs,  5  Jones  (N.  Car.) 


State  v, 
State  v. 
State  v, 
State  v. 
State  v. 

259, 
State  v, 
State  v. 
State  v 
State  v 
State  v, 

State  v. 
State  v, 

State  v, 
State  v, 

State  v 
475, 

State  v. 
305, 


Jacobs,  106  N.  Car.  695, 
Jacobs,  28  S.  Car.  29, 
Jager,  19  Wis.  235, 
James,  37  Conn.  360, 
James,  34  S.  Car.  49, 

80,  221, 
Jamison,  38  Minn.  21, 
Jarvis,  18  Ore.  360, 
Jarvis,  20  Ore.  437, 
Jaynes,  78  N.  Car.  504, 

18, 
Jeandel,  5  Harr.  (Del.) 

337 
Jefferson,  6  Ired.  (N.  Car.) 

480 


355 
515 
386 
,93 
502 

65 

266 

276 

588 

13 

550 
405 
458 
457 

186 


State  v.  Jeffries,  117  N.  Car.  727,  108 
State  v.  Jenkins  (Mo.,  1897),  41 

S.  W.  Rep.  220,  462 

State  v.  Jenkins,  6  Jones  (N.  Car.) 

19,  43 

State  v.  Jenkins,  14  Rich.  (S.  Car.) 

215,  548 

State  v.  Jennett,  88  N.  Car.  665, 

360,  361 
State  v.  Jennings,  81  Mo.  185, 

188,  331,  362 
State  v.  Jennings,  79  Iowa  513,  441 
State  v.  Jerome,  82  Iowa  749,  469 

State  v.  Jesse,  3  Dev.  &  Bat. 

(N.  Car.)  98,  487 

State  v.  Jeter  (S.  Car.,  1896),  24 

S.  E.  Rep.  889,  429 

State  v.  Jimmerson,  118  N.  Car. 

1173,  381 

State  v.  Johnson,  40  Conn.  136, 

208,  209 
State  v.  Johnson,  8  Iowa  525,  380 

State  v.  Johnson,  19  Iowa  230,  9 

State  v.  Johnson,  72  Iowa  393,  79,  584 
State  v.  Johnson,  89  Iowa  1,  277 

State  v.  Johnson,  29  La.  An.  717,  261 
State  v.  Johnson,  30  La.  An.  881,  162 
State  v.  Johnson,  31  La.  An.  368,  396 
State  v.  Johnson,  35  La.  An.  968,  118 
State  v.  Johnson,  41  La.  An.  574, 

291,  310 
State  v.  Johnson,  47  La.  An.  1225,  327 
State  v.  Johnson,  48  La.  An.  437,  274 
State  v.  Johnson,  12  Minn.  476,  461 
State  v.  Johnson,  91  Mo.  439,    32,  190 


State  v.  Johnson,  115  Mo.  480, 

238,  405,  406,  407,  408 
State  v.  Johnson,  12-Nev.  121, 

322,  323 
State  v.  Johnson,  1  Ired.  (N.  Car.) 

354,  381 

State  v.  Johnson,  67  N.  Car.  55,  67 
State  v.  Johnson,  16  S.  Car.  187,  542 
State  v.  Johnson,  26  S.  Car.  152, 

129   130 
State  v.  Johnson,  28  Vt.  512, 

479,  480,  481 
State  v.  Jolly,  3  Dev.  &  B.  110,  234 
State  v.  Jones,  52  Iowa  150,  100 

State  v.  Jones,  64  Iowa  349,  200 

State  v.  Jones,  41  Kan.  309,  285 

State  v.  Jones,  39  La.  An.  935,  468 
State  v.  Jones,  44  La.   An.  179, 

294,  340 
State  v.  Jones,  47  La.  An.  1524, 

130,  162,  278 
State  v.  Jones,  51  Maine  125,  86 

State  v.  Jones,  71  Mass.  872,  517 

State  v.  Jones,  55  Minn.  329,  44 

State  v.  Jones,  54  Mo.  478, 

160,  164,  165,  169 
State  v.  Jones,  134  Mo.  254,  388 

State  v.  Jones,  70  N.  Car.  75,  504 

State  v.  Jones,  78  N.  Car.  420,  524 

State  v.  Jones,  1  McMullen(S.Car.) 

236,  486 

State  v.  Jones,  29  S.  Car.  201,  299 

State  v.  Jones,  22  Tex.  App.  45,  421 
State  v.  Jones,  22  Tex.  App.  279,  195 
State  v.  Jones,  33  Vt.  443,  370 

State  v.  Jones,  20  W.  Va.  764,  401 
State  v.  Judiesch  (Iowa),  65  N.W. 

Rep.  157,  271 

State  v.  Justice,  2  Dev.  (N.  Car.) 

199,  499 

State  v.  Justus,  11  Ore.  178,  285 

State  v.  Kabrich,  39  Iowa  277,  95,  98 
State  v.  Karver,  65  Iowa  53,  597 

State  v.  Kearley,  28  Kan.  77,  17,  19 
State  v.  Keaveny  (La.,  1897),  21 

S.  Rep.  580,  583 

State  v.  Keefe,  54  Kan.  197,  387 

State  v.  Keeler,  28  Iowa  551,  9,  181 
State  v.  Keggon,  55  N.  H.  19.  34 

State  v.  Keith,  63  N.  Car.  140, 

257,  405,  406 
State  v.  Kelsoe,  11  Mo.  App.  91, 

244,  245 
State  v.  Kellev,  65  Vt.  531,  10S 

State  v.  Kellv,  28  Ore.  225,  161 

State  v.  Kellv,  46  S.  Car.  55,  62,  306 
State  v.  Kemp.  87  N.  Car.  538,  115 
State  v.  Kennade,  121  Mo.  405,  387 
State  v.  Keneston,  59  N.  H.  36,       485 


lxxxviii 


TABLE    OK    CASKS. 


[References  are  to  Pages.] 


State  v.  Kenyon,  18  R.  I.  217,  387 
State  v.  Kepper,  05  Iowa  745,  70 

State  v.  Keyes,  8  Vt.  57,  313,  512 

State  v.  Sibling,  63  Vt.  036,  340 

State  v.  Kimble,  34  La.  An.  392,  303 
State  v.  Kinder,  96  Mo.  548,  100,  161 
State  v.  King,  81  Iowa  587, 

53  349  351 
State  v.  King,  47  La.  An.  28,'  388',  389 
State  v.  King,  78  Mo.  555,  90,  150 

State  v.  King  (N.  H.,  1897),  34 

Atl.  Rep.  401,  503 

State  v.  King,  80  N.  Car.  603, 

75,  320,  321,  322,  417 
State  v.  King  (S.  D.,  1897),  70 

N.  W.  Rep.  1046,  278 

State  v.  Kingsburv,  58  Me.  238,  433 
State  v.  Kinley,  43  Iowa  294,  95,  105 
State  v.  Kinney,  44  Conn.  153,  409 
State  v.  Kirkpatrick,  63  Iowa  554, 

81,  82,  291,  293 
State  v.  Kline,  54  Iowa  183,  418 

State  v.  Klitzke,  46  Minn.  343,  594 
State  v.  Koontz,  31  W.  Va.  127,  580 
State  v.  Kortgaard,  04  Minn.  7,  340 
State  v.  Knapp,  45  N.  H.  148, 

470,  471,  480 
State  v.  Knight,  43  Me.  11,  381,  398 
State  v.  Knutson,  91  Iowa  549,  449 
State  v.  Kriechbautn,  81  Iowa 033,  34 
State  v.  Krug,  12  Wash.  288,  24,  25 
State  v.  Kyle,  14  Wash.  702,  23 

State  v.  Labuzan,  37  La.  An.  489,  390 
State  v.  Laeev,  111  Mo.  513,  407 

State  v.  Lackland,  136  Mo.  26,  361 
State  v.  Laliyer,  4  Minn.  368,  181 

State  v.  Lamothe,  37  La.  An.  43,  584 
State  v.  Lane,  80  N.  Car.  407, 

484,  485,  489 
State  v.  Lang,  03  Me.  215,  244 

State  v.  Lange,  59  Mo.  418,  328,  301 
State  v.  Langford,  45  La.  An.  1117, 

407,  409 
State  v.  Lantz,  23  Kan.  728,  281 

State  v.  Lapage,  57  N.  H.  245, 

98,  108,  502 
State  v.  Laque,  41  La.  An.  1070,  320 
State  v.  Larkin,  49  N.  H.  39,  551 

State  v.  Larkins  (Idaho),  47  Pac. 

Rep.  945.  198,  391 

State  v.  Lashus,  79  Me.  504,  576,  577 
State  v.  Latham,  13  Ired.  33,  369 

State  v.  Lattin,  29  Conn.  389,  474,  475 
State  v.  Lavin,  80  Iowa  555,  592,  593 
State  v.  Lau  lerbeck  (Iowa,  1890), 

65  N.  W.  Rep.  158,  452 

State  v.  Lautenschlager,  22  Minn. 

322,  375 

State  v.  Lawler,  130  Mo.  366,  420 


State  v.  Lawrence,  57  Me.  574, 

193  198 
State  v.  Laxton,  76  N.  Car.  216,  '  103 
State  v.  Laycock,  136  Mo.  93,  581 

State  v.  Leabo,  89  Mo.  247,  9,  26 

Slate  v.  Leach,  7  Conn.  452,  524 

State  v.  Leach,  1 15)  N.  Car.  828,  42(1 
State  v.  Leaden,  35  Conn.  515,  433 
State  v.  Learnard,  41  Vt.  585,  27,  28 
State  v.  Lee  (Conn.,  1897),  37  Atl. 

Rep.  85,  411 

State  v.  Lee  (Iowa,  1890),  64 

N.  W.  Rep.  284,  430 

State  v.  Lee,  22  Minn.  407,  97,  105 
State  v.  Lee,  80  N.  Car.  483,  264 

State  v.  Leeper,  70  Iowa  748,  296 

State  v.  Lehre,  2  Brev.  (S.  Car.) 

440,  42( ; 

State  v.  Leicham,  41  Wis.  565,  352 
State  v.  Leicht,  17  Iowa  28,  532 

State  v.  Lentz,  45  Minn.  177,  374,  385 
State  v.  Leppere,  66  Wis.  355,  100,  101 
State  v.  Leuth,  5  Ohio  Cir.  Ct. 

Rep.  94,  100,  168,  201 

State  v.  Lewis,  45  Iowa  20,  503 

State  v.  Lewis  (Iowa,  1890),  65  N. 

W.  Rep.  295,  550 

State  v.  Lewis,  19  Kan.  260,  525 

State  v.  Lewis,  26  Kan.  123,  504 

State  v.  Lewis,  56  Kan.  374,  341 

State  v.  Lewis,  44  La.  An.  958,  293 
State  v.  Lewis,  9  Mo.  App.  321,  309 
State  v.  Lewis  (Iowa),  65  N.  W. 

Rep.  295,  40 

State  v.  Lewis  (Mo.),  37  S.  W. 

Rep.  806,  271 

State  v.  Libby,  44  Me.  469,  446 

State  v.  Libby,  84  Me.  461,  43 

State  v.  Lichliter,  95  Mo.  402,  580 

State  v.  Lincoln,  17  Wis.  597,  377 

State  v.  Lingle,  128  Mo.  528, 

449,  232,  449 
State  v.  Litchfield,  58  Me.  267,  91,  229 
State  v.  Littscke,  27  Ore.  189,  245 

State  v.  Livesay,  30  Mo.  App.  633, 

543, 544 
State  v.  Lock  wood,  58  Vt.  378,  356 
State  v.  Lodge,  9  Houst.  (Del.) 

542,  140,  390 

State  v.  Loe,  98  Mo.  009,  330 

State  v.  Logan,  1  Nev.  509,  36,  37 

State  v.  Long,  103  Ind.  481, 

502,  503,  506 
State  v.  Lopez,  15  Nev.  407,  284 

State  v.  Low,  4  Me.  439,  37,  253 

State  v.  Lowe,  93  Mo.  547,  195 

State  v.  Lowborn,  66  N.  Car.  638,  165 
State  v.  Lowry,  42  W.  Va.  205, 

31,  184,  281,486,490 


TABLE    OF    CASES. 


lxxxix 


[Beferences  are  to  Pages."] 


State  v.  Lucas,  24  Ore.  168,  266 

State  v.  Lucker,  40  S.  Car.  549,  327 

State  v.  Lull,  48  Vt.  581,  386 

State  v.  Lung,  1  Conn.  428,  35 

State  v.  Lurch,  12  Ore.  99,  79 

State  v.  Lyon,  45  N.  J.  L.  272,  346 
State  v.  Lyon,  81  N.  Car.  600,      88,  89 

State  v.  Lyon,  89  N.  Car.  568,  427 
State  v.  Lytle,  117  N.  Car.  799, 

69,  430,  431 

State  v.  Mace,  118  N.  Car.  1244,  136 

State  v.  Madigan,  57  Minn.  425,  113 

State  v.  Madlicott,  9  Kan.  257,  131 

State  v.  Magoon,  68  Vt.  289,     152,  154 

State  v.  Maguire,  113  Mo.  670,  73 
State  v.  Malum  (Mo.),  39  S.  W. 

Rep.  465,  348 

State  v.  Maher,  74  Iowa  77,  186 

State  v.  Maier,  36  W.  Va.  757,  201 
State  v.  Main  (Conn.,  1897),  37 

Atl.  Rep.  80,  337 
State  v.  Maitremme,  14  La.  An. 

830,  179 

State  v.  Mallon,  75  Me.  355,  149 

State  v.  Malloy,  34  N.  J.  L.  410,  370 

State  v.  Maloriey,  12  R.  I.  251,  510 
State  v.  Manceaux,  42  La.  An. 

1164,  329 

State  v.  Markins,  95  Ind.  464,  115 
State  v   Marshall,  115  Mo.  383, 

150,  151 

State  v   Marseiler,  70  Cal.  98,  310 
State  v.  Marsteller,  84  N.  Car. 

726,  417 

State  v.  Martin,  31  La.  An.  849,  543 

State  v.  Martin,  124  Mo.  514,  302 
State  v   Martin  (S.  Car.,  1896),  25 

S.  E.  Rep.  113,  398 

State  v.  Martin,  30  Wis.  216,  416 
State  v  Marvels,  2  Harr    (Del.) 

527,  483 
State  v   Marvin,  35  N   H.22, 

234,  235,  444,  446 

State  v.  Mason,  26  Ore.  273,  424 

State  v.  Massey,  104  N.  Car.  877,  309 
State  v.  Mathes,  90  Mo.  571, 

128,  129,  141 

State  v.  Matlock,  70  Iowa  229,  461 

State  v.  Matthews,  88  Mo.  121,  53 
State  v.  Matthews,  98  Mo.  125, 

82,  88,  265 

State  v.  Mathews,  37  N.  H.  450,  520 
State  v.  Matthews,  78  N.  Car. 

523,                                    .  386 

State  v.  Maxwell,  47  Iowa  454,  483 

State  v.  Maxwell,  87  Iowa  255,  246 

State  v.  May,  20  Iowa  305,  363 

State  v.  Mavberrv,  48  Me.  218,  357 

State  v.  Maynard,  19  Nev.  284,  75 


State  v.  McAllister,  24  Me.  139, 

95,  487 
State  v.  McArdle  (N.  Y.),  5  Park. 

Cr   Rep.  180,  454 

State  v.  McBeth,  49  Kan.  584,         368 
State  v.  McCahill,  72  Iowa  111, 

391,  392,  399 
State  v.  McCant's,  1  Speers  (S. 

Car.)  384,  208 

State  v.  McCarty,  14  N.  H.  364,       354 
State  v.  McCaskey,  104  Mo.  644, 

452,  455 
State  v.  McCanon,  51  Mo.  160,  138 
State  v.  McCauley  (Wash,  1897), 

49  Pac.  Rep.  221,  52 

State  v.  McClain  (Mo.,  1897),  38 

S.  W.  Rep.  906,  163 

State  v.  McClintick,  73  Iowa  603, 

293,  448,  450,  456 
State  v.  McCormick,  57  Kan.  440,  506 
State  v.  McCoy  (Utah,  1897),  49 

Pac.  Rep.  420,  62,  411 

State  v.  McComb,  18  Iowa  43,  331 

State  v.  McCracken,  66  Iowa  569, 

187  188 
State  v.  McCrum,  38  Minn.  154,  '  408 
State  v.  McDaniel,  84  N.  Car.  803, 

26,  27,  28 
State  v.  McDavid,  15  La.  An.  403, 

459,  464 
State  v.  McDevitt,  79  Iowa  549, 

151,  368 
State  v.  McDonald,  106  Ind.  233,  514 
State  v.  McDonald,  57  Kan.  537,  103 
State  v.  McDonald,  67  Mo.  13,  419 
State  v.  McDowell,  101 JN.  Car. 

734  59^ 

State 'v.  McDuffie,  34  N.  H.  523,      369 
State  v.  McDuffie,  107  N.  Car. 

885,  447 

274 


State  v.  McFarlain,  41  La.  An 

686, 
State  v.  McFarlain 


42  La.  An.  803, 

51,  54,  306 
State  v.  McGahey,  3  N.  Dak.  293,  275 
State  v.  McGee,  81  Iowa  17, 

103,551,  553 
State  v.  McGinness,  74  Mo.  245, 

45,  46 
State  v  McGlothlen,  56  Iowa  544,  596 
State  v.  McGlynn,  34  N.  H.  422,  34 
State  v.  McGowan,  66  Conn.  392,  272 
State  v.  McGraw,  87  Mo.  161,  552 

State  v.  McGuff,  88  Ala.  147,  254 

State  v.  McGuire,  15  R.  I.  23, 

77,  81,  82,  302 
State  v.  McKee,  109  Ind.  497, 

368,  369 
State  v.  McKenzie,  42  Me.  392,       498 


xc 


TABLE    OF    CASES. 


[Beferences  are  to  Pages. ] 


State  v.  McKinney,  111  N.  Car. 

083, 
State  v.  McKnight,  111  N.  Car. 

690, 
State  v.  McLain  (Mo.,  1897),  38 

s.  W.  Rep.  906, 
State  v.  McLaughlin,  44  Iowa  82, 

294 
State  v.  McLaughlin,  27  Mo.  Ill,' 
State  v.  McLaughlin,  76  Mo.  320, 
State  v.  McLeod,  136  Mo.  109, 
State  v.  McLeod,  1  Hawks  (So. 

Car.)  344,  37, 

State  v.  McMahon,  17  Nev.  365, 
State  v.  McManus,89  N.  Car.  555, 
Slate  v.  McMath,  55  Ga.  303, 
State  v.  McNally,  87  Mo.  644, 
State  v.  McNeil,  33  La.  An.  1332, 

320, 
State  v.  McO'Blenis,  24  Mo.  402, 
State  v.  Meche,  42  La.  An.  273, 
State  v.  Mecum  (Iowa,  1896),  64 

N.  W.  Rep.  286, 
State  v.  Medbury,  8  R.  I.  543, 
State  v.  Melick.  65  Iowa  614, 
State  v.  Melrose,  98  Mo.  594, 
State  v.  Melton,  37  La.  An.  77, 
State  v.  Melton  (N.  Car.,  1897), 

26  S.  E.  Rep.  933,  167, 

State  v.  Merchant,  18  Atl.  Rep. 

654, 
State  v:  Merriman,  34  So.  Car.  16, 
103,  294,  302, 
State  v.  Merritt,  5  Sneed  (Tenn.) 

67, 
State  v.  Meshek,  61  Iowa  316, 
State  v.  Metcalf,  17  Mont.  117, 
State  v.  Metcalf,  2  Mo.  App.  1269, 

State  v.  Mevers,  46  Neb.  152, 
State  v.  Michael,  37  W.  Va.  565, 
State  v.  Miles,  89  Me.  142, 
State  v.  Miller,  9  Houst.  564, 

9,  381, 
State  v.  Miller,  65  Iowa  60, 
State  v.  Miller,  42  La.  An.  1186, 
State  v.  Miller,  13  Mich.  427, 
State  v.  Miller,  93  Mo.  263,       272, 
State  v.  Miller,  100  Mo.  606, 

9,  301, 
State  v.  Miller,  44  Mo.  App.  159, 

512, 
State  v.  Miller,  45  Minn.  521,  361, 
State  v.  Miller,  97  N.  Car.  484, 

90,  91, 
State  v.  Miller,  3  Wash.  St.  131, 
State  v.  Miller,  42  W.  Va.  215, 
State  v.  Milling,  35  S.  Car.  16, 
State  v.  Mills  17  Me.  211, 


State  v. 

297 

State  v. 

State  v. 

434 

State  v. 

State  v. 

456 

State  v. 

N.  W 

474 

State  v. 

581 

State  v. 

79 

413 

State  v. 

241 

State  v. 

432 

State  v. 

543 

447, 

467 

State  v. 

99 

State  v. 

State  v. 

323 

323 

State  v. 

439 

State  v. 

State  v. 

73 

State  v. 

446 

State  v. 

438 

551 

State  v. 

150 

State  v. 

462 

State  v. 

State  v. 

218 

State  v. 

State  v. 

374 

State  v. 

State  v. 

517 

State  v. 

341 

State  v. 

74 

186, 

State  v. 

533 

State  v. 

469 

State  v. 

254 

State  v. 

513 

398 
458 
162 
466 
293 

State  v. 
State  v. 
State  v. 
State  v 
State  v 
S.  W. 

302 

State  v. 
State  v. 

1146, 

517 

State  v. 

362 

State  v. 

,  33 

State  v. 

582 

State  v. 

447 

264 

State  v. 

502 

State  v. 

Mills,  91  N.  Car.  581,  130 

Mills,  15  Wash.  St.  534,  292 
Mills,  35  W.  Va.  455,  45 

Mims,  26  Minn.  183,  380 

Minis,  39  S.  Car.  557,  445 

Minard  (Iowa,  1897),  65 
.  Rep.  147,  148 

Minnick,  15  Iowa  123,  516 
Minor,  117  Mo.  302, 

77,  88,  302 
Minton,  116  Mo.  605, 

487,  491,  494 
Mitchell,  68  Iowa  116,  468 
Mitchell,  Phil.  (N.  Car.) 

170 
Mize,  117  N.  Car.  780,  586 
Moberly,  121  Mo.  604,  108 
Moelchen,  53  Iowa  310, 

8,  73,  105,  393 
Moncla,  39  La.  An.  868,  151 
Moore,  25  Iowa  128,  380 

Moore,  78  Iowa  494,  448 

Moore,  38  La.  An.  66,  126 
Moore,  101  Mo.  316, 

148,  152,362,  363,  364 
Moore,  lOti  Mo.  480,  421 

Moore,  117  Mo.  395, 

122,  435,441 
Moore,  111  N  Car.  667,  503 
Mook,  40  Ohio  St.  588,  349 
Moon,  41  Wis.  684,  355 

Moran,  46  Kan.  318,  284 

Moran,  15  Ore.  262,  240,  244 
Mordecai,  68  N  Car.  207,  59 
Morey,  2  Wis.  494,  355 

Morgan,  3  Ired.  (N.  Car.) 

417 
Morgan,  2  Lev  &  B.  348,  489 
Morrill,  16  Ark.  384,  520 

Morris,  47  Conn.  179,  434 

Morris,  109  N.  Car.  820, 

272,  297 
Morrison,  46  Kan.  679,  511 
Morton,  27  Vt.  310,  550 

Morton,  8  Wis.  167,  497 

Mosbv,  53  Mo.  App.  571,    534 
Moses  (Mo.,  1897)    40 
Rep.  883,  580,  581 

Moslev,  31  Kan.  355,  82,  83 
Moultrie,  33  La.  An. 

329 
Mowry,  37  Kan.  369,  208 

Moxley,  102  Mo.  374, 
10,  26,  60,  82,  83,  372,  373,  374 
Mulkern,  85  Me.  106,  470 

Mullins,  101  Mo.  514, 

81,  154,  155,  166,  168 
Murdy,  81  Iowa  603,  141 

Murphy,  45  La.  An.  958,      77 


TABLE  OF  CASES. 


XC1 


[Beferences  are  to  Pages.] 


State  v.  Murphy,  118  Mo.  7, 

97  99  472 
Murphy,  84  N.  Car.  470, 
Murphy,  17  R.  I.  698, 
Murphy,  15  Wash.  98, 
Murray,  6  Cr.  Law  Mag. 


State  v 
State  v 
State  v 
State  v 

255, 
State  v 
State  v 
State  v 
State  v 

66  N. 
State  v 
State  v 
State  v 
State  v 
State  v 
State  v 
State 
State 
State 
State 
State 
State  v 
State  v 
State  v 
State  v 


State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 

State  v 

156, 
State  v. 
State  v. 

State  v. 

251, 
State  v. 
State  v. 
State  v. 


Murray,  15  Me.  100, 
Murray,  39  Mo.  App.  127, 
Muscheid,  12  Wis.  561, 
Mushrush  (Iowa,  1896), 
W.  Rep.  746, 
Musick,  101  Mo.  260, 
Myers,  103  Ind.  481, 
Myers,  82  Mo.  558, 
Nadal,  69  Iowa  487,     460, 
Nagel,  136  Mo.  45, 
Nance,  25  S.  Car.  168, 
Napper,  6  Nev.  113, 
Nargrave,  65  N.  Car.  466, 
Nash,  7  Iowa  347,         139, 
Nash,  45  La.  An.  974,  386, 
Neagle,  65  Maine  468,  111, 
Neill,  6  Ala.  685, 
Neimeier,  66  Iowa  634, 
Nelson,  98  Mo.  414, 
Nelson,  101  Mo.  464, 

132,  134, 
Nettlebush,  20  Iowa  252, 
New,  29  Minn.  76, 
Newhouse,39  La.  An.  662, 
Newman,  57  Kan.  506, 
Newsom,  29  Mo.  154, 
Newton,  44  Iowa  45, 
Nichols,  29  Minn.  357, 
Niles,  47  Vt.  82, 
Norton,  121  Mo   537, 
Noenineer,  108  Mo.  166, 
Nolan,  48  Kan.  723, 
Noland,  111  Mo.  473,  346, 
Norton,  89  Me.  290, 
Norton,  76  Mo.  180, 
Nulty,  2  East.  Rep.  347, 
Ober,  52  N.  H.459,  76,  84, 
O'Blenis.  24  Mo.  402, 
O'Brien,  81  Iowa  93, 

136,  302,  322,  324, 
O'Brien,  18  Mont.  1, 

166,  294,  295,  296, 
,  Odell,  4  Blackf.   (Ind.) 

Oliver,  55  Kan.  711, 
Oliver,  43  La.  An.  1003, 

.      321, 
O'Neil,  7  Ired.  (N.  Car.) 
95 
O'Neil,  51  Kan.  651, 
O'Reilly,  126  Mo.  597, 
Ormiston,  66  Iowa  143, 


473 
108 
492 
356 

193 

525 
543 

588 

553 

580 
502 
486 
462 
581 
130 
416 
476 
383 
387 
576 
232 
505 
76 

139 
137 
349 
130 
200 
327 
408 
588 
470 
389 
394 
429 
351 
425 
501 
343 
304 
320 

435 

310 

245 
165 

393 

,  98 

397 

62 

100 


State  v. 
State  v. 

N.  W 
State  v. 

540, 
State  v. 

State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 

State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

67  N. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

348, 
State  v 


Osborne,  28  Iowa  9, 
Osborne  (Iowa,  1896),  65 
.  Rep.  159, 
Oscar,  7  Jones  (N.  Car.) 

Ostwalt,  118  N.  Car.  1208, 
587, 
Otey,  7  Kan.  69, 
Otis,  135  Ind.  267, 
Overstreet,  43  Kan.  299, 

405, 
Owsley,  111  Mo.  450,  441, 
Oxford,  30  Tex.  428, 
Padillia,  42  Cal.  530, 
Pagels,  92  Mo.  300, 

193,  197,  204, 
Pain,  48  La.  An.  311, 

103,  231, 
Painter,  50  Iowa  317, 
Painter,  67  Mo.  84, 
Palmer,  50  Kan.  318, 
Palmer,  65  N.  H.  216, 
Pancoast  (N.  Dak.,  1896), 
W.  Rep.  1052,  113, 

Parham,  48  La.  An.  1309, 

,  Parish,  22  Iowa  482, 
Parish,  104  N.  Car.  679, 
Park,  57  Kan.  431, 

,  Parrott,  87  N.  Car.  615, 
Partlow,  90  Mo.  608, 

Patillo,  4  Hawks  (N.  Car.) 


Patrick,  107  Mo.  147, 

468,  469, 

State  v.  Patterson,  73  Mo.  695, 

161,  162, 
State  v.  Patterson,  88  Mo.  88, 
State  v.  Patterson,  2  Ired.  346, 

232,  236,  459, 
State  v.  Patterson,  45  Yt.  308, 

140,  141,  142, 
State  v.  Pease,  74  Ind.  263, 
State  v.  Peffers,  80  Iowa  580, 

124,  386, 

State  v.  Pennington,  124  Mo.  388, 

29,  232, 

State  v.  Penny,  70  Iowa  190,      52, 

State  v.  Pennvman,  68  Iowa  162, 

202, 
State  v.  Peo,  9  Houst.  (Del.)  488, 
State  v.  Perkins,  3  Hawks  (N. 

Car.)  377,  157,  158 

State  v.  Perkins,  66  N.  Car.  126,  292 
State  v.  Perkins,  117  N.  Car.  698,  597 
State  v.  Perry,  136  Mo.  126,  109,  382 
State  v.  Peter,  8  Jones  (N.Car.)  19,  470 
State  v.  Peters,  107  N.  Car.  876,  526 
State  v.  Peterson,  67  Iowa  564,        362 


355 

272 

20 

588 
473 
453 

409 

442 

238 

20 

310 

391 
452 
418 
505 
148 

303 
142 
344 
475 
526 
231 
391 

499 
475 

163 
79 

464 

381 
484 

388 

396 
503 

360 
380 


XC11 


TABLE    OF    CASES. 


[References  are  to  Pages. ,] 


State  v. 

State  v. 
Car.) 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

State  v. 
State  v. 

State  v. 

N.  W 
State  v. 

N.  W, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

805, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

N.  W. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 

State  v. 


Petsch,  43  S.  Car.  182, 

132,  396 
Pettaway.  3  Hawks  (N. 
623,  591,  592 

Pettit,  119  Mo.  410,  387 

Petty,  119  Mo.  425,  503 

Pfefferle,  36  Kan.  90, 

76,  259,  302 
Phair,  48  N't.  366,  493 

Phelps,  4  Day  (Conn.)  469, 

510 
Phelps,  11  Vt.  116,  422,  483 
Phifer,  65  N.  Car.  320,  503 
Phillips,  5  Ind.  App.  122, 

598 
Phillips,  24  Mo.  475,  151 

Phillips,  104  N.  Car.  786, 

244,  418 
Philpot  (Iowa,  1897),  66 
.  Rep.  730,  266,  272,  301 

Phipps  (Iowa,  1896),  64 
Rep.  411,  370 

Picker,  2  Mo.  App.  1074.  342 
Pickett,  11  Nev.  255,  465 

Pickett,  118  N.  Car.  1231,  510 
Pierce,  7  Ala.  728,  369 

Pierce,  65  Iowa  85, 

17,  20,  209 
Pierce,  77  Iowa  245,  349 

Pierson,  12  Ala.  149,  337 

Pigford,  117  N.  Car.  748,  542 
Pike,  35  Ala.  419,  368 

Pike,  65  Me.  Ill,  396 

Pippin,  88  N.  Car.  646,  115 
Plum,  49  Kan.  279,  241,  340 
Plnnkett,  64  Me  534,  111 

Poindexter,  23  W.  Va. 

47 

Pomeroy,  130  Mo.  489,  535 
Pomery,  25  Kan.  349,  121 

Porter,  34  Iowa  131,  400 

Porter,  57  Iowa  691,  475 

Porter  (Iowa,  1896),  66 
Rep.  745,  436 

Porter,  26  Mo.  201,  355 

Potter,  13  Kan.  414,  386 

Potter,  108  Mo.  424,  150,  583 
Potter,  42  Vt.  495,  91 

Potter,  52  Vt,  33,  444 

Potts,  83  Iowa  317,  583,  584 
Potts,  4  Halst.  26,  490 

Powers,  130  Mo.  475, 

69,  186,  251 
Powers,  51  N.  J.  L.  432,  250 
Pope,  109  N.  Car.  849,  447 
Pratt,  20  Iowa  267,  154 

Pratt,  98  Mo.  482, 

346.  350,  352 
Pratt,  121  Mo.  566,  302  ' 


State  v.  Pray,  14  N.  II.  464,  354 

State  v.  Price,  6  La.  An.  691,  139 

State  v.  Pritchard,  107  N.  Car. 

921,  514,517 

State  v.  Pritchett,  106  N.  Car.  667,  77 
State  v.  Pruett  (La.,  1897),  21  So. 

Rep.  842,  344 

State  v.  Prvor,  30  Ind.  350,  505 

State  v.  Pugh,  7  Jones  (N.  Car.) 

Law  61,  46S 

State  v.  Punshon,  133  Mo.  44, 

121  374  394 
State  v.  Purdy,  36  Wis.  213,  '  '  516 
State  v.  Quarles,  13  Ark.  307,  90 

State  v.  Rainsbarger,  71  Iowa  801,  236 
State  v.  Ramd,  33  N.  M.  216,  148 

State  v.  Ramsev,  48  La.  An.  1407,  395 
State  v.  Ransell,  41  Conn.  433,  111 
State  v.  Rash,  12  Ired.  (N.  Car.) 

382,  114,  391 

State  v.  Raven,  115  Mo.  419,  121 

State  v.  Ravenscroft,  62  Mo.  App. 

109  352 

State 'v.  Ray,  53  Mo.  345,  581 

State  v.  Raymond,  46  Conn.  345, 

360,  441 
State  v.  Raymond,  53  N.  J.  L 


260, 

28,  266 

594,  597 

29 


State  v.  Read,  45  Iowa  469, 
State  v.  Reader,  103  111.  434, 
State  v.  Reasbev  (Iowa,  1896),  69 

N.  W.  Rep.  451,  66 

State  v.  Red,  53  Iowa  69,  165,  172 

State  v.  Reddick,  7  Kan.  143,  195,  205 
State  v.  Reddington  (N   Dak.),  64 

N.  W.  Rep.  170,  254 

State  v.  Redemeier,  71  Mo.  173,  198 
State  v.  Redman,  62  Iowa  456,  149 
State  v.  Redstrake,  39  N.  J.  L,  365, 

485,  489 
State  v.  Reed,  62  Me.  129,  13,  19 

State  v.  Reed,  62  Iowa  40,  188 

State  v.  Reed,  53  Kan.  767,  133 

State  v.  Reed,  89  Mo.  168,  275,  364 
State  v.  Reed  (Mo.),  38  S.W.  Rep. 

574,  141,  389 

State  v.  Reeves,  97  Mo.  668,  451 

State  v.  Reick,  43  Kan.  635,  273 

State  v.  Reid,  20  Iowa  413,  435,  441 
State  v.  Reid  (Idaho,  1897),  35 

Pac.  Rep.  706,  283 

State  v.  Reid,  39  Minn.  277, 

470,  471,  478 
State  v.  Reidel  (Del.),  14  Atl.  Rep. 

968,  204 

State  v.  Reilly,  4  Mo.  App.  392,  346 
State  v.  Reitz,  83  N.  Car.  634,  1 '  ',  438 
State  v.  Renfrow,  111  Mo  589,  73 

State  v.  Renton,  15  N.  H.  169,         548 


TABLE    OF    CASES. 


XC111 


[Preferences  are  to  Pages. ] 


State  v.  Revells,  34  La.  An.  381, 

164,  173 
State  v.  Reynolds  (Kan.,  1897), 47 

Pac.  Rep.  573,  108 

State  v.  Reynolds  (S.  Car.,  1897), 

26  S.  E.  Rep.  679,  231 

State  v.  Rice  (S.  Car.,  1897),  27  S. 

E.  Rep.  452,  299 

State  v.  Richards,  67  Mo.  320,  468 

State  v.  Richardson,  18  Ala.  109,  256 
State  v.  Riddle,  20  Kan.  711,  386,  387 
State  v.  Rights,  82  N.  Car.  675,  441 
State  v.  Riley,  42  La.  An.  995,  126,  322 
State  v.  Rinev  (Mo.,  1897),  38  S. 

W.  Rep.  718,  86 

State  v.  Ring,  29  Minn.  78,  350,  351 
State  v.  Rivers,  58  Iowa  102,  501 

State  v.  Rivers,  68  Iowa  611,  187,  441 
State  v.  Roach,  2  Mo.  App.  1114,  46 
State  v.  Robbins,  124  Ind.  308,  535 
State  v.  Roberts,  15  Ore.  187,  432 

State  v.  Roberts,  39  Mo.  App.  127,  543 
State  v,  Roberts,  63  Vt.  139,  59 

State  v.  Robertson,  30  La.  An.  340,  389 
State  v.  Robinson,  35  La.  An.  964,  354 
State  v.  Robinson,  39  Me.  150,  576 
State  v.  Robinson,  117  Mo.  659,  10 
State  v.  Robinson,  116  N.  Car. 

1046,  245 

State  v.  Robinson,  16  N.J.  L.  507,  487 
State  v.  Robinson  (Ore.,  1897),  48 

Pac.  Rep.  357,  276,  475 

State  v.  Robinson,  35  S.  Car.  340, 

341,  439 
State  v.  Robinson,  20  W.  Va.  713, 

208,  281 
State  v.  Rockett,  87  Mo.  666,  576 

State  v.  Rodman,  62  Iowa  456,  99 

State  v.  Rogers,  56  Kan.  362,  22 

State  v.  Rogers,  108  Mo.  202,  291,  456 
State  v.  Rogers,  79  N.  Car.  609,  588 
State  v.  Rogers,  112  N.  Car.  874,  163 
State  v.  Rogers,  119  N.  Car.  793,  587 
State  v.  Rohrer,  34  Kan.  427,  584 

State  v.  Rollins,  113  N.  Car.  729, 

32,  387,  393 
State  v.  Romaine,  58  Iowa  46,  589,  592 
State  v.  Rose,  47  Minn  47,  339 

State  v.  Roswell,  6  Conn.  446,  462 

State  v.  Roten,  86  N.  Car.  701,  542 
State  v.  Rounds.  76  Me.  123,  17,  20 
State  v.  Rover,  13  Neb.  21,  168 

State  v.  Row,  81  Iowa  138,  58 

State  v.  Rowland,  72  Iowa  327, 

187,  189 
State  v.  Rubv,  61  Iowa  86,  148 

State  v.  Rucker,  93  Mo.  88,  491 

State  v.  Rudy,  5  Pa.  Dis.  Co.  270,  427 
State  v.  Rugan,  5  Mo.  App.  592,      291 


State  v.  Ruhl,  S  Iowa  447,  408 

State  v.  Russell,  90  Iowa  569,  446 

State  v.  Russell,  45  N.  H.  83,  548 

State  v.  Russell,  33  La.  An.  135,  90 

State  v.  Russell,  13  Mont.  164,  130 

State  v.  Ruth,  14  Mo.  App.  226,  46 

State  v.  Ruthven,  58  Iowa  121,  519 

State  v.  Sales,  2  Nev.  268,  513 

State  v.  Salge,  2  Nev.  321,  245 
State  v.  Samuel,  2  Dev.  &  Bat. 

(N.  Car.)  177,  236 

State  v.  Sanders,  30  Iowa  582,  463 

State  v.  Sanders,  79  Mo.  35,  152 
State  v.  Sanders,  106  Mo.  188, 

46,  74,  188 

State  v.  Sanders,  14  Ore.  300,  78 

State  v.  Sanders,  84  N.  Car.  728,  161 

State  v.  Sanford,  124  Mo.  484,  472 

State  v.  Sards,  185  Ind.  195,  347 

State  v.  Sarvis,  45  S.  Car.  668,  428 

State  v.  Sauer,  38  Minn.  438,  20 
State  v.  Sauer,  42  Minn.  258,  302,  303 
State  v.  Saunders,  68  Iowa  370, 

111,  490 

State  v.  Saunders,  14  Ore.  300,  79 
State  v.  Sawtelle,  66  N.  H.  488, 

229,  254 

State  v.  Schaeffer,  89  Mo.  271,  507 

State  v.  Schaeffer,  116  Mo.  96,  196 

State  v.  Schaffer,  70  Iowa  371,  363 

State  v.  Schaffer,  71  Iowa  704,  540 

State  v.  Schaffer,  89  Mo.  271,  504 

State  v.  Schingen,  20  Wis.  74,  346 

State  v.  Schleagel,  50  Kan.  325,  95 
State  v.  Schlemm,  4  Harr.  (Del.) 

577,  561 
State  v.  Schmidt,  73  Iowa  469, 

129,  142 
State  v.  Schmidt  (Mo.),  38  S.  W. 

Rep.  719,  168 

State  v.  Schoenwald,  60  Ala.  19,  21 
State  v.  Scott  (La.,  1897),  21  So. 

Rep.  271,  197 

State  v.  Scott,  45  Mo.  302,  493 

State  v.  Scott,  28  Ore.  331,  445 

State  v.  Scripture,  42  N.  H.  485,  435 
State  v.  Seagler,  1  Rich.  (S.  C.)  30, 

353 


State  v.  Sears,  86  Mo.  169, 

State  v.  Sears,  Phill.  (N.  Car.)  146 

State  v.  Seery  (Iowa,  1896),  64 

N.  W.  Rep.  631, 
State  v.  Sellner,  17  Mo.  App.  39, 
State  v.  Semotan,  85  Iowa  57, 
State  v.  Senn,  32  So.  Car.  392, 

166,  242, 
State  v.  Severson,  78  Iowa  653, 


417 
368 

511 
531 
368 

438 

279 


XC1V 


TABLE    OF    CASES. 


[References  are  to  rages."] 


State  v.  Sevmore  (Iowa,  1895), 

63  N.  W.  Rep.  661,  113,  372,  397 

Stat.'  v.  Seymour,  36  Me.  225,  433 
State  v.  Shannehan,  22  Iowa  435,  331 
State  v.  Sharp,  132  Mo.  165,  449,  453 
State  v.  Shean,  32  Iowa  88,  27,  456 
State  v.  Shelters,  51  Vt.  102,  485 

State  v.  Shelton,  2  Jones  N.  C.  L. 

360,  134,  137 

State  v.  Shepard,  7  Conn.  54,  477 

State  v.  Shettle worth,  18  Minn. 

208,  468 

State  v.  Sherwood,  90  Iowa 550,  489 
State  v.  Shields,  45  Conn.  256,  476 
State  v.  Shinborn,  46  N.  H.  497,  493 
State  v.  Shoemaker,  62  Iowa  343, 

587   592 
State  v.  Shreve  (Mo.),  38  S.  W. 

Rep.  548.  37 

State  v.  Shuford,  69  N.  Car.  486,  108 
State  v.  Sibley,  131  Mo.  519,  450,  456 
State  v.  Silva,  130  Mo.  440,  348 

State  v.  Simmons,  3  Ala.  497,  422 

State  v.  Simons,  17  N.  H.  83,  34 

State  v.  Simpson,  2  Hawks.  (N 

Car. )  460, 
State  v.  Skidmore,  87  N.  Car.  509,  401 
State  v.  Skinner  (Ore.,  1897),  46 

Pac.  Rep.  368, 
State  v.  Slagle,  83  N.  Car.  630, 
State  v.  Slingerland,  19  Nev.  135, 

8,  73 
State  v.  Sloan,  35  Iowa  220,  232 

State  v.  Sloan,  55  Iowa  217, 

21,  459,  464 
State  v.  Small,  26  Kan.  209, 

46,  263,  349 
State  v.  Smalley,  50  Vt.  736,  111 

State  v.  Smith,  49  Conn.  376,  286 

State  v.  Smith,  9  Houst.  588,  100,  168 
State  v.  Smith  (Iowa,  1897),  68 

N.  W.  Rep.  428,  227 

State  v.  Smith,  5  Day  (Conn.)  175, 

497,  498 
589 
510 
154 
58 
130 
375 
197 


367 


355 

377 


State  v.  Smith,  54  Iowa  104, 
State  v.  Smith,  11  Ore.  205, 
State  v.  Smith,  30  La.  An.  457, 
State  v.  Smith,  38  La.  An.  301, 
State  v.  Smith,  48  La.  An.  533, 
State  v.  Smith,  32  Me.  369, 
State  v.  Smith,  53  Mo.  267, 
State  v.  Smith  (Mo.,  1897),  38  S.W. 

Rep.  717,  423 

State  v.  Smith,  31  Mo.  120,  484 

State  v.  Smith,  119  N.  Car.  856,       528 
State  v.  Smith,  8  Rich.  (S.  Car.) 

460,  328 

State  v.  Smith,  2  Ired.  (N.  Car.) 

402,  235,  236 


State  v.  Smith,  12  Rich.  430,  387 

State  v.  Smith,  8  Yerg.  (Tenn.) 

150,  495 

State  v.  Smith,  6  R.  I.  33,  281,  337 
State  v.  Sneed,  88  Mo.  138,  395 

State  v.  Snure,  29  Minn.  132,  589 

State  v.  Snyder,  44  Mo.  App.  429,  46 
State  v.  Somerville,  21  Me.  14,  354 
State  v.  Sommers,  60  Minn.  90,  245 
State  v.  Soper,  16  Me.  293, 

147,  17L  214 
State  v.  Sopher,  70  Iowa  494,  163 

State  v.  Sorter,  52  Kan.  531,  290 

State  v.  Southern,  48  La.  An.  628,  265 
State  v.  Spalding,  19  Conn.  233,  496 
State  v.  Sparks,  78  Ind.  166,  523 

State  v.  Spaulding,  61  Vt.  505,  576 
State  v.  Spell,  38  La.  An.  20,  389 

State  v.  Speller,  86  N.  Car.  697,  544 
State  v.  Spence,  21  N.  J.  Law  196,  193 
State  v.  Spencer,  (Utah,  1897),  49 

Pac.  Rep.  302,  93 

State  v.  Spencer  10  Humph. 

(Tenn.)  431,  245 

State  v.  Spillman,  43  La.  An.  1001, 

328 
State  v.  Squires,  1  Tvler  (Vt.)  147, 

223 


State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

366, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

S.  \V. 
State  v. 
State  v. 
State  v. 
State  v. 


Stackhouse,  24  Kan.  445,  397 
Stafford,  55  Ga.  591,  170 

Stair,  87  Mo.  268,  60 

Stanley,  64  Me.  157,  503 

Staley,  14  Minn.  105,  169 

Staples,  47  N.  H.  113,  321 

Stark,  1  Strobh.(S.C.)479,  200 
Starling,  6  Jones  (N.  C.) 

197 
Starnes,  97  N.  Car.  423,  584 
Staton,  114  N.  Car.  813,  97 
Stebbins,  29  Conn.  463,  90 
Steeves,  29  Ore.  85,  296 

Stephens,  71  Mo.  535,  177 

Sterrett,  68  Iowa  76,  105 

Stevens,  56  Kan.  720,  475 

Stevenson,  68  Vt.  529,  411 
Stewart,  52  Iowa  217,  22,  413 
Stewart,  34  La.  An.  1037,  322 
Stewart,  47  La.  An.  410,  386 
Sticklev,  41  Iowa  232,  197 
Sticknev,  53  Kan.  308,  584 
Stone,  106  Mo.  1,  405 

Stone,  40  Iowa  185,     348,  406 

467 

355 

87 
445 
106 
408 


Storkev.  63  N.  Car.  7, 
Storts  (Mo.,  1897),  39 
Rep.  483, 
Stotts,  26  Mo.  307, 
Stout,  71  Iowa  343, 
Stout,  49  Ohio  St.  270, 
Stoyell,  54  Me.  24, 


TABLE  OF  CASES. 


XCV 


[References  are  to  Pages."] 


State  v. 

State  v. 

State  v. 

L99, 

Stale  v. 
State  v. 

Stat -3  v. 

State  v. 

State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
N.  W 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 

State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v 

S.  E. 
State  v. 
State  v. 
State  v. 
State  v. 

S.  W. 
State  v. 

State  v. 
State  v. 

508, 
State  v. 
State  v. 

243, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 

State  v. 

State  v. 

State  v. 

445, 


Strattman,  100  Mo.  540, 
Streeter,  20  Nev.  403, 
Stroll,  1  Rich.  (N.  Car.) 


456 
458 

499 
444 


Stubbs,  108  N.  Car.  774, 
Suggs,  89  N.  Car.  527, 

153,  156,  168 
Sullivan,  51  Iowa  142, 

142,  381 
Sullivan,  43  S.  Car.  205, 

373,  389 
Sullivan,  68  Vt.  540,  466 

Sumner,  2  Ind.  377,  369 

Surles,  117  N.  Car.  720,        58 
Sutherland,  30  Iowa  570, 

454,  456 
Swafford  (Iowa,  1896),  67 
.  Rep.  284,  526,  527 

Swaim,  97  N.  Car.  462,       527 
Swain,  68  Mo.  615,  101 

Swift,  69  Ind.  505,  516 

Talbert,  41  S.  Car.  526, 

51,  140,  393 
Talbot,  73  Mo.  347,  273 

Tall,  43  Minn.  273, 

80,  262,  290,  301,  303,  583 
Talmage,  107  Mo.  534, 

18,  157 
Tanner,  38  La.  An.  307,  281 
Tarter,  26  Ore.  38,  74 

Tatman,  59  Iowa  471,  84 

Tatro,  50  Vt.  483,  175 

.  Taylor  (Ga.,  1897),  26 
Rep.  748,  417 

Tavlor,  45  La.  An.  605,       104 
Taylor,  117  Mo.  181,  301 

Tavlor,  118  Mo.  153,  152 

.  Taylor  (Mo.,  1897),  37 
Rep.  907,  353 

Tavlor,  134  Mo.  109, 

22,  74,  85,  171 
Tavlor,  136  Mo.  66,  294,  439 
Taylor,  Phil,  (N.  Car.) 

320 
444 


Taylor,  58  N.  H.  331, 
Taylor,  3  Brev.  (S.  Car.) 


541 

433 

82 

520 

505 


Teeter,  69  Iowa  717, 
Tennison,  42  Kan.  330, 
Tennv,  23  N.  H.  162, 
Tessier,  32  La.  An.  1227, 
Testermann,  68  Mo.  408, 

109,  382 
Terrell,  12  Rich.  321, 

135,  139,  378 
Tertv,  106  Mo.  209,  456 

Thaden,  43  Minn.  325,  88,  303 
Thatcher,  35  N.  J.  L. 

501 


State  v.  Thawley,  4  Harr.  (Del.) 

562,  386 

State  v.  Thibeau,  30  Vt.  100,  550,  552 
State  v.  Thibodeaux  (La.,  1897), 

21  So.  Rep.  127,  529 

State  v.  Thomas,  53  Towa  214,  457 

State  v.  Thompson,  19  Iowa  299,  483 
State  v.  Thompson,  47  La.  An. 

1597,  90 

State  v.  Thompson,  85  Me.  189,  28 
State  v.  Thompson,  83  Mo.  257,  281 
State  v.  Thompson,  132  Mo.  301,  379 
State  v.  Thompson  (Wash.,  1896), 

44  Pac.  Rep.  533,  475 

State  v.  Thornton,  22  So.   Rep. 

315,  310 

State  v.  Thurtell,  29  Kan.  148,  98 

State  v.  Tice  (Ore.,  1897),  48  Pac. 

Rep.  367,  552 

State  v.  Tice,  90  Mo.  112,  28 

State   v.   Tilghman,    11   Ired. 

(N.  Car.)  513,  132,  133 

State  v.  Tillman,  30  La.  An.  1249,  467 
State  v.  Tilly,  3  Ired.  (N.  Car.) 

424,  386 

State  v.  Timmens,  4  Minn.  325, 

452,  455 
State  v.  Tipton,  1  Blackf.  (Ind.) 

166,  521 

State  v.  Tindall,  5  Harr.  (Del.) 

488,  497 

State  v.  Tompkins,  32  La.  An.  620,  349 
State  v.  Tompkins,  71  Mo.  613, 

281  493 
State  v.  Tosney,  26  Minn.  262,  '  306 
State  v.  Townsend,  66  Iowa  741,  381 
State  v.  Trolson,  21  Nev.  419,  347 

State   v.   Trounce,   5   Wash.    St. 

804,  316 

State  v.  Trove,  1  Ind.  App.  553,  343 
State  v.  Trumbull,  1  Southard 

(N.  J.)  139,  522 

State  v.  Tucker,  20  Iowa  508,  37 

State  v.  Tull,  119  Mo.  44,  483 

State  v.  Turley,  3  Humph.  (Tenn.) 

323,  43 

State  v.  Turlington,  102  Mo.  642, 

130,  133,  305,  328 
State  v.  Turner,  1  Houst.  C.  C. 

(Del.)  76,  480 

State  v.  Turner,  48  La.  An.  460,  265 
State  v.  Turner,  110  Mo.  196,  79,  434 
State  v.  Turner,  119- N.  Car.  841, 

92   348 
State  v.  Turner,  36  S.  Car.  534, 

102,  292,  294,  298 
State  v.  Turpin,  77  N.  Car.  473, 

389,  390 
State  v.  Tweedy,  11  Iowa  350,         142 


XCV1 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Btate  v.  Twittv,  2  Hawks  (N.  Car.) 

248,  487,  498 

State  v.  Tyrrell.^S  Mo.  354,  436 

State  v.  Tvson,  50  Kan.  686,  584 

State  v.  Ulrich,  110  Mo.  350,  462 

State  v.  Umble,  1 15  Mo.  452,  85 

State  v.  Underwood,  44  La.  An 

852,  79 

State  v.  Underwood,  76  Me.  630,  329 
State  v.  Un  Dong,  106  Cal.  83,  76 

State  v.  Upham,  38  Me.  261,  95,  98 
State  v.Urie  (Iowa,  1897),  70 

N.  W.  Rep.  603,  477 

State  v.  Vaigneur,  5  Rich.  (S.  Car.) 

391,  173 

State  v.  Vallery,  47  La.  An.  182,  394 
State  v.  Valwell,  66  Vt.  558,  109,  111 
State  v.  Van  Auken  (Iowa,  1897), 

68  N.  W.  Rep.  454,  483,  495 

State  v.  Vandimark,  35  Ark.  396,  501 
State  v.  Vansant,  80  Mo.  67, 

20,  128,  140 
State  v.  Van  Vliet,  92  Iowa  476,  293 
State  v.  Van  Winkle,  80  Iowa  15,  303 
State  v.  Vari,  35  S.  Car.  175,  278 

State  v.  Vatter,  71  Iowa  557,  432 

State  v.  Vanghan,  22  Nev.  285, 130,  389 
State  v.  Vaughan,  1  Bay.  (S.  Car.) 

282,  500 

State  v.  Vedder,  98  N.  Y.  630,  410 
State  v.  Veillon  (Iowa,  1897),  21 

So.  Rep.  856,  328 

State  v.  Velarde,  59  Cal.  563,  360 

State  v.  Vickers,  47  La.  An.  1574,  298 
State  v.  Vincent,  24  Iowa  570, 

124,  393 

State  v.  Vineyard,  16  Mont.  138,  491 
State  v.  Vinson,  63  N.  Car.  335,  365 
State  v.  Vollander,  57  Minn.  225,  446 
State  v.  Wacker,  16  Mo.  App.  417,  45 
State  v.  Wagner,  61  Me.  178,  28 

State  v.  Wait,  44  Kan.  310,  427 

State  v.  Walker,  77  Me.  488, 

118,  119,  121,  124 
State  v.  Walker,  78  Mo.  380,  118 

State  v.  Walker,  98  Mo.  95,  88,  330 
State  v.  Wallace,  9  N.  H.  515,  115 

State  v.  Waller,  70  Mich.  237,  45 

State  v.  Waller,  88  Mo.  402,  375 

State  v.  Wallick,  87  Iowa  360,  348 

State  v.  Walsh,  44  La.  An.  1122,  78 
State  v.  Walton,  61  N.  W.  Rep. 

169,  92  Iowa  455,  142 

State  v.  Walton,  114  N.  Car.  783, 

501,  502 

State  v.  Ward,  73  Iowa  532,  102,  477 
State  v  Ward,  19  Nev.  297,  339,  553 
State  v.  Ward,  103  N.  Car.  419,       434 


State  v. 
184, 
State  v. 
State  v. 
State  v. 
State  v. 

341, 
State  v. 
State  v. 

276, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

491, 
State  v. 

N.  W. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 

371, 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

(N.  C 
State  v. 
State  v. 
State  v. 
State  v. 

876, 
State  v. 
State  v. 
State  v. 

State  v. 
State  v. 
State  v. 

529, 
State  v. 


Ward,  61  Vt.  153,       147,  152, 
187,  188,  190,  278,  430,  432,  479 


Warford,  100  Mo.  55, 
Warner,  74  Mo.  83, 
Warren,  109  Mo.  430, 
Washington,  36  La.  An. 

Waterman,  87  Iowa  255, 
Waters,  6  Jones  (N.  Car.) 


436 
343 
495 

580 
245 

369 
114 


Watkins,  9  Conn.  47, 
Watson,  81  Iowa  380,   471,472 
Watts,  48  Ark.  56,  307 

Wav,  5  Neb.  283,  444 

Weasel,  30  La.  An.  919,  550 
Weatherby,  43  Me.  258,  447 
Weaver,  13  Ired.  (N.  Car.) 

483 
Weems  (Iowa,  1896),  65 
.  Rep.  387,  272 

Welch,  26  Me.  30,  235,  446 
Welch,  79  Me.  99,  249 

Welch,  21  Minn.  22,  208,  209 
Welch,  36  W.  Va.  090, 

166,  398 
Welch,  37  Wis.  196,  511 

Weldon,  39  S.  Car.  318,  253 
Wells,  48  Iowa  671,  455 

Wells,  111  Mo.  533,  17,  74 

Welsh,  29  S.  Car.  4,  32 

Wentworth,  65  Me.  264, 

76, 
Wenz,  41  Minn.  196, 
West,  1  Houst.  C.  Rep. 


West,  43  La.  An.  1006, 
West,  09  Mo.  401, 
Westfall,  49  Iowa  328, 
Whalen,  98  Mo.  222, 
Wheeler,  19  Minn.  98, 
Wheeler,  94  Mo.  252, 
Wheeler,  108  Mo.  058, 
Whizenhurst,  2  Hawks, 
ar.)  458, 

White,  19  Kan.  445, 
White,  89  N.  Car.  402, 
White,  8  Wash.  230, 
Whitfield,  109  N.  Car. 


304 
455 

196 
103 
9,  46 
18.1 
525 
495 
454 
453 

249 

80 

365 

244 


Whitmer,  77  Iowa  557, 
Whitney,  38  La.  An.  579, 
Whitson,  111  N.  Car.  697, 
141, 

Whitworth,  126  Mo.  573, 
Wieners,  06  Mo.  13, 
Wilbourne,  87  N.  Car. 

Wilcox,  111  Mo.  569, 


163 

584 

51 

381 

277 

66 

502 

474 


TABLE    OF    CASES. 


XCVH 


[References  are  to  Pages.'} 


State  v.  Wilcox,  3  Yerg.  (Term.) 

278,  370 

State  v.  Wilkins,  68  Vt.  1, 

151, 180,  470,  471 
State  v.  Wilkinson,  121  Mo.  485,  408 
State  v.  Wilks,  58  Mo.  App.  159,  361 
State  v.  Williams,  103  Ind.  235,  505 
State  v.  Williams,  20  Iowa  98,  461 

State  v.  Williams,  66  Iowa  573, 

145,  485,  486 
State  v.  Williams,  76  Me.  480,  110,  115 
State  v.  Williams  (Mo.,  1897),  38 

S.  W.  Rep.  75,  513 

State  v.  Williams,  72  Miss.  992,  545 
State  v.  Williams,  95  Mo.  247,  352 
State  v.  Williams,  7  N.  Car.  446, 

11,  136 
State  v.Williams,  2  Rich.  (S.Car.) 

418,  487 

State  v.  Williams,  27  Vt.  724, 

145,  146 
State  v.  Williamson,  106  Mo.  165, 

109,  182,  201,  202,  382 
State  v.  Williamson,  42  Conn.  261,  94 
State  v.  Williamson,  7  Jones  (N. 

Car.)  446,  11 

State  v.  Willingham,  33  La.  An. 

537,  271 

State  v.  Willis,  79  Iowa  326,  309 

State  v.  Willis,  63  N.  Car.  26,  381 

State  v.  Wilner,  40  Wis.  304,  195 

State  v.  Wilson,  22  Iowa  364,  444 

State  v.  Wilson  (Iowa,  1896),  64 

N.  W.  Rep.  266,  360,  362 

State  v.  Wilson,  24  Kan.  189,  131,  140 
State  v.  AVilson,  23  La.  An.  558,  135 
State  v.  Wilson,  40  La.  An.  751,  281 
State  v.  Wilson,  39  Mo.  App.  114,  134 
State  v.  Wilson,  121  Mo.  434,  129 

State  v.  Wilson  (Mo.,  1897),  39  S. 

W.  Rep.  80,  441 

State  v.  Wilson,  31  N.  J.  L.  77,  235 
State  v.  Wilson,  5  R.  I.  291,  61 

State  v.  Wilton,  114  N.  Car.  783,  112 
State  v.  Wimbush,  9  S.  Car.  309,  511 
State  v.  Winchester,  113  N.  Car. 

641,  342 

State  v.  AVindahl  (Iowa,  1896),  64 

N.  W.  Rep.  420,  373,  394 

State  v.  Windsor,  5  Harr.  (Del.) 

512,  201 

State  v.    Wingfield,   34  La.    An 

1200,  151 

State  v.  Wingo,  89  Ind.  204,  353 

State  v.  Wingo,  66  Mo.  181, 

32,  193,  400 
State  v.  Winner,  17  Kan.  298,    11,  553 
State  v.  Wisdom,  84  Mo.  177,  340,  545 
vii — Cr.  Ev. 


State  v.  Wister,  62  Mo.  592,  245 

State  v.  Witham,  72  Me.  531,  76,  144 
State  v.  Witt,  34  Kan.  488,  19,  22 

State  v.  Wolcott,  21  Conn.  271,  37 
State  v.  Wood,  53  N.  H.  484,  240,  414 
State  v.  Wood,  53  Vt.  560, 

136,  137,  138 
State  v.  Woodfin,  5  Ired    L.  (N. 

Car.)  199,  521.  543 

State  v.  Woodrow,  56  Kan.  217,  4S4 
Slate  v.  Woodruff,  67  N.  Car.  89,  66 
State  v.  Woods,  49  Kan.  237,  50 

State  v.  Woods,  124  Mo.  412,  241 

Slate  v.  Woodward,  34  Me.  293,  34 
State  v.  Woodward,  95  Mo.  129,  584 
State  v.  Woodward,  131  Mo.  369,  421 
State  v.  Woolard,  111  Mo.  248,  188 
State  v.  Workman,  15  S.  Car.  540, 

164,  231 
State  v.  Workman,  39  S.  Car.  151, 

164,  584 
State  v.  Workman,  35  W.  Va.  367,  544 
State  v.  Worthingham,  23  Minn. 

528,  591 

State  v.  Worthington,  64  N.  Car. 

5U4,  182 

State  v.  Wray,  109  Mo.  584,  467 

State  v.  Wright,  70  Iowa  152,  320 

State  v.  Wright,  41  La.  An.  600, 

231,  236 

State  v.  W right,  48  La.  An.  1525,  147 
State  v.  Wright,  53  Me.  328,  337 

State  v.  Wright,  134  Mo.  404,  197,  204 
State  v.  Wright,  25  Neb.  38,  467 

State  v.  Wyatt,  124  Mo.  537,  421 

State  v.  Wvse,  33  S.  Car.  582, 

302,  327,  390 

State  v.  Yancey,  74  N.  Car.  244,  416 
State  v.  Yerger,  86  Mo.  33,  491 

State  v.  Yetzer  (Iowa,  1896),  66 

N.  W.  Rep.  737,  310 

State  v.  Young  (Iowa,  1896),  65 

N.  W.  Rep.  160,  539 

State  v.  Young,  99  Mo.  284,  456 

State  v.  Young,  105  Mo.  634,  265 

State  v.  Yut  Ling,  74  Cal.  569,  184 
State  v.  Zarn,  22  Ore.  591,  207 

State  v.  Zeibart,  40  Iowa  169,  381,  510 
State  v.  Zellers,  2  Halst.  (N.  J.) 

220,  386 

State 'v.  Zichfield  (Nev.,  1897),  46 

Pac.  Rep.  802,  461 

State  v.  Zimmermann,  3  Kan.  App. 

172.  271,  273 

State  v.  Zinn,  26  Mo.  App.  17,         368 
State  v.  Zinn,  61  Mo.  App.  476,       341 
State,  rx  rel.  O'Malley,  v.  O'Con- 
nor, 38  Minn.  243,  560 


XCV111 


TABLE    OF    CASES. 


[References  are  to  Pages. ] 


State,    ex   rel.    Smith,    v.    Goss 

(Minn.,  1897),  68  N.  W.  Rep. 

1089,  560 

Btatham  v.  State,  86  Ga.  331,  580,  584 
Stavinow  v.  Home  Ins.  Co.,  43 

Mo    App.  513,  269 

Stayton  v.  State,  32  Tex.  Cr.  Rep. 

302 
Stazey  v.  State,  58  Ind.  514,  45 

Steadman  v.  State,  81  Ga.  736,  440 
Steele  v.  People,  45  111.  152, 

328   329  497 
Steele  v.  State,  83  Ala.  20,  '  103 

Steen  v.  State.  20  Ohio  333,  231 

Stell  v.  State,  33  Fla.  348,  389 

Stephens  v.  People,  4  Park.  Cr. 

Rep.  (N.  Y.)  396,  101,  378 

Stephens  v.  People,  19  N.  Y.  549,  315 
Stephens  v.  State,  56  Ga.  604,  469,  485 
Stephens  v.  State,  20  Nev.  122,  468 
Stephenson  v.  Bannister,  3  Bibb. 

369,  562 

Stephenson  v.  State,  28  Ind.  272,  407 
Stephenson  v.  State,  110  Ind.  358, 

118,  121 
Stepp  v.  State,  31  Tex.  Cr.  Rep. 

349,  70 

Stern  v.  State,  53  Ga.  229,  535 

Sternaman,  Ex  parte,  77  Fed.  Rep. 

595,  560 

Sternaman  v.  Peck,  80  Fed   Rep. 

883,  557 

Stevens  v.  People,  158  111.  Ill,  468 
Stevens  v.  State,  50  Kan.  712,  303 

Stevenson  v.  Gunning,  64  Vt. 

601,  299 

Stevenson  v.  State,  69  Ga.  68,  394 

Stewart  v.  DeLoach,  86  Ga.  729,  53 
Stewart  v.  State,  78  Ala.  436,  397 

Stewart  v.  State,  24  Ind.  142,  37 

Stewart  v.  State,  44  Ind.  237,  21 

Stewart  v.  State,  113  Ind.  505,  484 
Stewart  v.  State,  62  Md.  412,  356 

Stewart  v.  State,  22  Ohio  St.  477,  100 
Stice,  Ex  parte,  70  Cal.  51,  278,  279 
Stich  v.  State,  25  Tex.  App.  420,  424 
Stiewell  v.  State  (Ark.,  1890),  12 

S.  W.  Rep.  1014,  546 

Stitt  v.  State,  91  Ala.  10,  32 

Stitz  v.  State,  104  Ind.  359,  21,  431 
Stockdale  v.  State,  32  Ga.  225,  542 
Stokes  v.  People,  53  N.  Y.  164, 

23,  25,  32,  381,  390 
Stokes  v.  State,  84  Ga.  258,  440 

Stokes  v.  State,  5  Baxt.  (Tenn.) 

619,  400,  437 

Stone  v.  State,  20  N.  J.  L.  401 ,  493 
Stone  v.  State,  4  Humph.  (Tenn.) 

27,  108 


Stoner  v.  Devilbiss,  70  Md.  144,  276 
Stoppert  v.  Nierle,  45  Neb.  105,  600 
Storror,  In  re,  63  Fed.  Rep.  564,  229 
Story  v.  State,  99  Ind.  413,  60 

Stout  v.  People,  4  Park.  Cr.  Rep. 

( N   Y  )  7 1  385 

Stout  v.  State,  90  Ind.  1,  17,  281 

Stovall  v.  State,  9  Baxt.  597,  588 

Stover  v.  People,  56  N.  Y.  315, 

99,  100,  101,  304 
Strait  v.  State,  43  Tex.  486,  367 

Strang  v.  People,  24  Mich.  1,  481 

Strauss  v.  State,  58  Miss.  53,  328 

Strickler  v.  Grass,  32  Neb.  811,  594 
Stringfellow  v.  State,  26  Miss. 

157,  181 

Strong  v.  State,  86  Ind.  208,  502 

Strong  v.  State,  105  Ind.  546,  547 

Strother  v.  Barr,  5  Bing.  136,  54 

Strother  v.  State  (Miss.,  1897),  21 

So.  Rep.  147,  544 

Stuart  v.  Binse,  10  Bosw.  (N.  Y.) 

436,  63 

Stuart  v.  People,  42  Mich.  255,  441 
Stuart  v.  People,  3  Scam.  395,  520 

Studdy  v.  Sanders,  2  Dowl.  &  R. 

347,  216,  218 

Stueart  v.  People,  42  Mich.  255,  168 
Sturgeon  v.  Com.,  37  S.  W.  Rep. 

679,  541 

Sturtevant  v.  Com.,  158  Mass. 

598,  570 

Su.ldeth  v.  State,  70  Miss.  250,  544 
Sullivan  v.  Com.,  93  Pa.  St.  284,  286 
Sullivan  v.  Hurley,  147  Mass. 

387,  595 

Sullivan  v.  Jefferson,  etc.,  Co., 

133  Mo.  1.  295 

Sullivan  v.  People,  6  Colo.  App. 

458,  43 

Sullivan  v.  People,  114  111.  24, 

45,  304 
Sullivan  v.  State,  6  Tex.  App.  319, 

320,  321,  323,  325 
Summons  v.  State,  5  Ohio  St.  325,  322 
Surber  v.  State,  99  Ind.  171,  154 

Surles  v.  State,  89  Ga.  167,  299 

Sutfin  v.  People,  43  Mich.  37,  587 

Sutton  v.  Com.  (Ky.),  30  S.  W. 

Rep.  661,  484 

Sutton  v.  Com.,  85  Va.  128,  84 

Sutton  v.  State,  12  Fla.  135,  542 

Sutton  v.  State,  16  Tex.  App.  490, 

216,  222 
Swaim  v.  Humphreys,  42  111.  App. 

370,  218 

Swalley  v.  People,  116  111.  247,  246 
Swallow's  Case,  31  How.  State 

Trials  971,  91 


TABLE    OF    CASES. 


XC1X 


[References  are  to  Payes.] 


Swartz  v.  State,  7  Ohio  Dec.  43,  401 
Sweat  v.  State,  4  Tex.  App.  617,  42 
Sweet  v.  Sherman,  21  Vt.  23,  595 

Swisher  v.  Com.,  26  Gratt.  (Va.) 

963,  '     133,  138 

Swisher  v.  Malone,  31  W.  Va.  442,  596 
Sykes  v.  People,  132  111.  32,  43 

Sylvester  v.  State,  91  Ala.  17,  149,  285 


Tarboxv.  State,  38  Ohio  St.  581, 
Tarver  v.  State,  43  Ala.  354, 

415,  416, 
Tatum  v.  State,  82  Ala.  5, 
Tatum  v.  State,  63  Ala.  147, 
Taulman  v.  State,  37  Ind.  353,  231, 
Taylor  v.  Com.,  3  Bash  (Kv.)  508, 
Tavlor  v.  Com.,  94  Ky.  281, 
Taylor  v.  Com.  (1892),  18  S.  W. 

Rep.  852, 
Tavlor  v.  Com.,  90  Va.  109,        85, 
Tavlor  v.  Evans  (Tex.,  1894),  29 

S.  W.  Rep.  172, 
Taylor  v.  People,  12  Hun  (N.Y.) 

212, 
Tavlor  v.  People,  34  S.  W.  Rep. 

227 
Taylo'r  v.  State,  22  Ala.  15, 
Tavlor  v.  State,  111  Ind.  279, 
Taylor  v.  State,  130  Ind.  66, 
Tavlor  v.  State,  83  Ky.  847, 
Tavlor  v.  State,  52  Miss.  84, 
Tavlor  v.  State,  15  Tex.  App.  356, 
Tavlor  v.  State,  22  Tex.  App.  529, 

474, 
Taylor  v.  United  States,  3  How. 

(IT.  S.)  197, 
Teachout  v.  People,  41  N.  Y.  7, 
Temple  v.  Com.,  75  Va.  892, 
Templeton  v.  People,  27  Mich.  501, 
Territory  v.  Clavton,  8  Mont.  1, 
Territory  v.  Corbett,  3  Mont.  50, 
Territory  v.  Crozier,  6  Dak.  8, 
Territory  v.  Egan,  3  Dak.  119, 
Territory  v.  Godfrey,  6  Dak.  46, 
Territory  v.  Guthrie,  2  Idaho  398, 
Territory  v.  Guttman  (N.  Mex., 

1896),  42Pac.  Rep.  68, 
Territory  v.  Harding,  6  Mont.  323, 
Territory  v.  Perkins,  2  Mont.  467, 
Terrv  v.  State.  90  Ala.  635, 
Thalheim  v.  State  (Fla.),  20  So. 

Rep.  938, 
Thaver  v.  Davis,  38  Vt,  163, 
Thayer  v.  Thayer,  101  Mass.  101, 
Theisen  v.  Dayton,  82  Iowa  74, 
Therasson  v.  People,  20  Hun 

(N.  Y.)  55, 
Thiede  v.  People,  11  Utah  241, 


552 

418 
55 
209 
232 
103 
506 

79 
241 

220 


84 
547 
476 
278 
304 
280 
363 

476 

61 
166 
303 
114 
298 
456 
367 
372 
468 
331 

254 
331 
331 
543 

348 
594 
216 
218 

505 

280 


Thiede  v.  Utah  Territory,  159 

U.  S.  510,  372,  397 

Thomas  v.  Com.  (Ky.,  1893),  20 

S.  W.  Rep.  226,  375 

Thomas  v.  Com.,  22  Gratt.  (Va.) 

912,  574 

Thomas  v.  Com.,  90  Va.  92,  516 

Thomas  v.  People,  113  III.  531,        504 
Thomas  v.  People,  67  N.  Y.  218, 

102,  105,  381,  387,  391 
Thomas  v.  State,  109  Ala.  25,  150,  433 
Thomas  v.  State,  27  Ga.  287,  124 

Thomas  v.  State,  67  Ga.  460,     376,  398 
Thomas  v.  Slate,  84  Ga.613,  161 

Thomas  v.  State,  90  Ga.  437,  503 

Thomas  v.  State,  95  Ga.  484,  340 

Thomas  v.  State  (Ga.,  1897),  26 

S.  E.  Rep.  748,  416 

Thomas  V.  State,  103  Ind.  419, 

76,  110,  132,  484,  485,487,  494,  536 
Thomas  v.  State,  61  Miss.  60,  330 

Thomas  v.  State,  41  Tex.  27,  429 

Thomas  v.  State  (Tex.),  26  S.  W. 

Rep.  724,  445 

Thomason  v.  Territory,  4  N.  Mex. 

157,  279 

Thompson  v.  Com.,  20  Gratt. 

(Va.)  72,  165 

Thompson  v.  Com.,  88  Va.  45,         327 
Thompson  v.  German  Vallev  R. 

R.  Co.,  22  N.  J.  Eq.  Ill,  "  213,316 
Thompson  v.  State,  30  Ala.  28,  490 
Thompson  v.  State,  49  Ala.  16,  491 
Thompson  v.  State,  99  Ala.  173,  532 
Thompson  v.  State,  100  Ala.  70,  103 
Thompson  v.  State,  38  Ind.  39, 

468,  469 
Thompson  v.  State,  5  Kan.  159,  331 
Thompson  v.  State,  51  Miss.  353,  367 
Thompson  v.  State,  26  Tex.  App. 

466,  357 

Thompson  v.  State  (Tex.),  26  S.W. 

Rep.  987,  470,  473 

Thompson  v.  State,  60  Vt.  204,         298 
Thornlev  v.  State  (Tex.,  1896),  34 

S.  W.  Rep.  264,  490 

Thornlev  v.  State  (Tex.,  1897), 

35  S.  W.  Rep.  981,  112 

Thornell  v.  People,  11  Colo.  305,       46 
Thornton  v.  State  (Ala.,  1897),  21 

So.  Rep.  356,  375 

Threadgill  v.  State,  32  Tex.  Cr. 

Rep.  451,  441 

Throckmorton  v.  Com.  (Ky.,  1894), 

29  S   W.  Rep.  16,  358 

Thurmond  v.  State  (Tex.,  1896), 

35  S.  W.  Rep.  965,  354 

Thurmond  v.  State,  25  Tex.  App. 

365,  489 


TABLE    OF   CASSS. 


Tidwell  v.  State,  70  Ala.  33,  208,  390 
Tiffany  v.  Com.,  121  Pa.  St.  165, 

193,  386 
Tilly  v.  State,  21  Fla.  242,  302 

Timon  v.  State,  34  Tex.  Crim.  363,  245 
Tiramona  v.  State,  80  ( ra.  216,  486 
Tinkler's  Case,  1  East  P.  C.  354,  133 
Tinney  v.  State,  111  Ala.  74,  46 

Tioga  County  v.  South  Creek 

Township,'  ?•">  Pa.  St.  433,  592,  594 
Tipton  v.  State,  30  Tex.  App.  530,  299 
Tittle  v.  State,  30  Tex.  App.  597,  358 
Todd  v.  State,  31  Ind.  514, 

501,  502,  506 

Toliver  v.  State,  94  Ala.  11,  151 

Tolleson  v.  State,  97  Ga.  352,  583 

Toops  v.  State,  92  Ind.  13,  17,  84 

Totman  v.  Forsaith,  55  Me.  360,  600 
Totten  v.  United  States,  92  U.  S. 

107,  213 

Towns  v.  State,  111  Ala.  1,  188 

Townsend  v.  State,  2  Blackf.  (Ind.) 

151,  334 

Tracey  v.  Noyes,  143  Mass.  449,  599 
Tracy  v.  People,  97  111.  101, 

128,  143,  272 
Trafton  v.  State,  5  Tex.  App.  480, 

354,  355 

Trask  v.  People,  151  111.  212.  328,  484 
Traverse  v.  State,  61  Wis.  144,  385 
Tripp  v.  State,  95  Ga.  502,  584 

Trogden  v.  Corn.,  31  Gratt.  (Va.) 

863,  502,  505 

Trujillo  v.  Territory  (N.  Mex., 

1897),  30Pac.  Rep.  870,  277 

Trulock  v.  State,  1  Clarke  (Iowa) 

515,  332 

Truslow  v.  State,  95  Tenn.  189,  352 
Tucker  v.  People,  122  111.  583, 

459,  462,  463 
Tucker  v.  Shaw,  158  111.  326,  251 

Tucker  v.  State,  57  Ga.  503,  342 

Tullia  v.  State,  39  Ohio  St.  200,  89 
Turley  v.  State,  3  Humph.  (Tenn.) 

323,  44,  356 

Tnrnbull  v.  Richardson,  69  Mich. 

400,  271 

Turner  v.  People,  33  Mich.  363,  477 
Turner  v.  State,  97  Ala.  57.  375 

Turner  v.  State,  102  Ind.  425,  26,  108 
Turner  v.  State,  50  Miss.  351,  232 

Turner  v.  State,  89  Tenn.  547, 

60,  121,  141 
Turner  v.  State  (Tex.),  32  S.  W. 

Rep.  700,  277 

Turner  v.  State,  33  Tex.  Cr.  Rep. 

103,  385 

Turpin  v.  State,  55  Md.  462,  231 


\Beferences  are  to  Pages.] 

Tuttle  v.  Com.  (Ky.,  1896),  33  S. 

W.  Rep.  823,  391 

Tweedy  v.  State,  5  Iowa  433,    193,  401 
Tyler  v.  Hall,  106  Mo.  313,  216 


u 


ITdderzook  v.  Com.,  76  Pa.  St.  340,  63 
Ulrich  v.  People,  39  Mich.  245,  174 
Underwood  v.  State,  72  Ala.  220, 

43,  44,  354,  360 
Underwood  v.  State  (Tex.,  1897), 

41  S.  W.  Rep.  618,  88 

United  States  v.  Adams,  2  Dak. 

305,  347 

United  States  v.  Addatte,  6 

Blatchf.  76,  236 

United  States  v.  Amador,  6  N. 

Mex.  173,  527 

United  States  v.  Angell,  11  Fed. 

Rep.  34,  119,  121,  321 

United  States  v.  Angney,  15 

Wash.  Law  Rep.  560,  582 

United  States  v.  Arredondo,  6 

Peters  (U.S.)  691,  568 

United  States  v.  Babcock,  3  Dill. 

C.  C.  581,  229,  310,  540,  551 

United  States  v.  Bachelder,  2  Gall. 

14,  511 

United  States  v.  Barber,  21  D.  C. 

456,  245 

United  States  v.Barrells,8  Blatchf. 

475,  275 

United  States  v.  Bascadore,  2 

Cranch  C.  C.  30,  166 

United  States  v.  Bassett,  5  Utah 

131,  231,  232 

United  States  v.  Battiste,  2  Sumn. 

(U.  S.)  240,  334,  337,  344 

United  States  v.  Bayaud,  23  Fed. 

Rep.  721,  177 

United  States  v.  Bebout,  28  Fed. 

Rep.  522,  536 

United  States  v.  Beege,  2  Dak.  292,  29 
United  States  v.  Benson,  146 U.  S. 

325,  87 

United  States  v.  Blodgett,  35  Ga. 

336,  35 

United  States  v.  Boese,  46  Fed. 

Rep.  917,  181 

United  States  v.  Bott,  11  Blatchf. 

C.  C.  346,  536 

United  States  v.  Boyd,  45  Fed. 

Rep.  851,  115 

United  States  v.  Bredemeyer,  6 

Utah  143,  445 

United  States  v.  Britton,  2  Mason 

464,  41,  47 


TABLK    OF    CASES. 


CI 


[References  are  to  Pages."] 


United  States  v. 
C.  531, 

United  States  v, 

Rep.  457, 
United  States  v. 

(U.  S.)  208, 
United  States  v. 

C.  C.  150, 
United  States  v. 

C.  C.  76, 
United  States  v. 

364, 
Ignited  States  v. 

311, 
United  States  v. 

C.  729, 
United  States  v. 

365, 
United  States  v. 

14  N.  W.  Rep 
United  States  v. 

671, 
United  States  v, 

C. C.  482, 
United  States  v. 

Rep.  595, 
United  States  v. 

C.  C.  213, 
United  States  v. 

C.  C.  519, 
United  States  v. 

C. C.  509, 
United  States  v 

1897),  80  Fed. 
United  States  v. 

(Pa.)  147, 
United  States  v. 

189, 
United  States  v. 

Fed   Rep.  343t 
United  States  v. 

Rep.  861, 
United  States  v. 

594, 
United  States  v. 

C.  C.  19, 
United  States  v. 

C.  C.381, 
United  States  v. 

Rep.  528, 
United  States  v. 

Rep.  161, 
United  States  v. 

234, 
United  States  v. 

864, 
United  States  v. 

352, 


Brown,  1  Saw.  C. 

38,  39 
Brown,  40  Fed. 

78 
Burns,  5  McLean 

487,  498 
Caton,  1  Cranch 

278 
Charles,  2  Cranch 

239 
Coolidge,  2  Gall. 

37,  38,  278 
Cooper,  4  Dall. 

315 
Craig,  4AVash.C. 

487,  498 
Cross,  20  D.  C. 

272 
Crow  Dog  (Dak.), 
.437.  231 

Curtis,  107  U.  S. 

528 
Davis,  2  Sumner 

555 
Deaver,  14  Fed. 

517 
Dodge,  2  Gall. 

521 
Doebler,  1  Bald. 

487 
Durling,  4  Biss. 

300,  313 
Edsrerton  (D.  C, 
Rep.  374,      35,  37,  38 
Edme,  9  S.  &  R. 

317 
Eldredge,  5  Utah 

584 
Farrington,  5 

37 
Ford,  33  Fed. 

298,  306 
Ford,  99  U.  S. 

88 
Gibert,  2  Sumn. 

11,  280,  583 
Graff,  14  Blatchf . 

549 
Grimm,  50  Fed. 

537 
Guiteau,  10  Fed. 

200,  201 
Gunther,  5  Dak. 

421 
Hall,  44  Fed.  Rep. 

527,  528 
Hall,  33  Fed.  Rep. 

256,  257 


United  States  v.  Hand,  2  Wash. 

C.  C.435,  415 

United  States  v.  Hanway,  2  Wall. 

Jr.  L39,  235 

United  States  v.  Harned,  43  Fed. 

Rep.  376,  517,  518 

United  States  v.  Harper,  33  Fed. 

Rep.  471.  13 

United  States  v.  Hartwell,  3  Clif. 

221,  552 

United  States  v.  Hawthorn,  1  Dill. 

Q.  C.  422,  72 

United  States  v.  Heath,  20  D.  C. 

272,  24,  130 

United  States  v.  Heath,  19  Wash. 

Law  Rep.  818,  17 

United  States  v.  Henry,  4  Wash. 

C.  C.  428,  86,  87 

United  States  v.  Hinrnan,  1  Baldw. 

292,  488,  498 

United  States  v.  Hinz,  35  Fed. 

Rep.  272,  89,  90,  94 

United  States  v.  Holmes,  1  Clif. 

98,  193 

United  States  v.  Houghton,  14 

Fed.  Rep.  544,  486 

United  States  v.  Howell,  56  Fed. 

Rep.  21,  91 

United  States  v.  Hunter,  15  Fed. 

Rep.  712,  229,  311 

United  States  v.  Jackson,  29  Fed. 

Rep.  503,  354 

United   States  v.  Jones,  32  Fed. 

Rep.  569,  231 

United  States  v.  Jones,  3  Wash. 

C.  C.  209,  420 

United  States  v.  Jones,  2  Wheeler 

Cr.  Cases  451,  256 

United  States  v.  Kee,  39  Fed.  Rep. 

603,  313,  314 

United  States  v.  Keene,  1  McLean 

429,  490,  494 

United  States  v.  Kessler,  Bald. 

C.  C.  15,  93 

United  States  v.  Kindred, 4  Highes 

(U.  S.)  493,  314 

United  States   v.    Kirkwood,  5 

Utah  123,  164 

United   States    v.    Lancaster,  44 

Fed.  Rep.  896,  92,  94 

United  States  v.  Lantry,  30  Fed. 

Rep.  232,  436 

United  States  v.  Lee,  4  Mackey 

489,  200 

United   States  v.   Macomb,  5 

McLean  C.  C   286,  320 

United  States  v.  Mathews,  68  Fed. 

880,  43 


Cll 


TABLE    OF    CASES. 


[References  at 

United  States  v.  Mathias,  36  Fed. 

Rep.  892,  536 

United  States  v.  McGlue,  1  Cur. 

C   C.  1,  197 

United  States  v.   Mitchell,    Bald. 

C.  C.  367,  486,  489 

United  States  v.  Moore,  2  Low. 

232,  528 

United  States  v.  Morris,  1  Curt. 

(U.  S.)  23,  334 

United  States  v.  Moses,  4  Wash. 

C.  C.  726,  214,  215,  485 

United  States  v.  Mullaney,  32  Fed. 

Rep.  370,  79 

United    States    v.    Nardello,    4 

Mackey  503,  165 

United  States  v.  Newton,  52  Fed. 

Rep.  275,  17 

United  States  v.  Noble,  5  Cranch 

C.  (U.  S.)  371,  497 

United    States   v.    Noelke,    17 

Blatch.  C.  C.  554,  119,  121,  537 

United  States  v.  Ortega,  4  Wash. 

C.  C.  531,  417 

United  States  v.  Palmer,  2  Cranch 

C.  C.  11,  34 

United  States  v.  Pirates,  5  Wheat. 

(U.  S.)  184,  55 

United  States  v.  Porter,  2  Cranch 

C.  C.  11.  139 

United   States  v.  Porter,   3   Day 

(Conn.)  283,  41 

United   States   v.   Rauscher,    119 

U.  S.  407,  555 

United  States  v.  Reder,  69  Fed. 

R.  965,  10 

United  States  v.  Reid,  2  Blatchf. 

435,  37,  240 

United  States  v.  Reid,  12  How. 

(U.  S.)  361,  86,  309 

United  States  v.  Reyburn,  6  Pet. 

(U.  S.)  352,  51 

United  States  v.  Richards,  2 

Cranch  C.  C.  439,  173 

United  Stales  v.  Rose,  12  Fed.  Rep. 

576,  518 

United  States  v.  Roudenbush, 

Bald.  C.  C.  514,  99 

United  States  v.  Sacia,  2  Fed.  Rep. 

754,  90,  549 

United  States  v.  Shinn,  8  Sa.  403,  528 
United  States  v.  Slenker,  32  Fed. 

Rep.  691,  536 

United  State  v.  Smallwood,  5 

Cranch  C.  C.  35,  232 

United  States  v.  Smith,  4  Cranch 

C.  C.  659,  534 

United  States  v.  Smith,  47  Fed. 

Rep.  501,  304 


e  to  Pages."] 

United  States  v.  Smith,  1  Sawy. 

277,  583 

United  States  v.  Stevens,  52  Fed. 

Rep.  120,  497,  498 

United  States  v.  Tainter,  11 

Blatch.  (U.  S.)  374,  347 

United  States  v.  Taylor,  11  Fed. 

Rep.  470,  338 

United  States  v.  Taylor,  35  Fed. 

Rep.  1091,  295 

United  States  v.  Taylor,  3  McCrarv 

500,  342 

United  States  v.  Tenney  (Ariz.), 

11  Pac.  Rep.  472,  462,  464 

United  States  v.  Thomas,  47  Fed. 

Rep.  807,  314 

United  States  v.  Tilden,  10  Ben. 

C.  C.  566,  311 

United  States  v.  Turner,  7  Peters 

132,  495 

United  States  v.  Veitch,  1  Cranch 

C.  C.  115,  136 

United  States  v.Watkins,  3  Cranch 

C.  C.  441,  288 

United  States  v.  Wayne,  Wall.  C. 

C.  134,  521 

United  States  v.  Weightman,  29 

Fed.  Rep.  636,  536 

United  States  v.  Weikel,  8  Mont. 

124,  496 

United  State  v   Whitaker,  6 

McLean  342,  100 

United  States  v.  White,  2  Wash. 

C.  C.  29,  35 

United  States  v.  Whittier,  5  Dill. 

C.  C.  35,  536 

United  States  v.  Williams,  14  Fed. 

Rep.  550,  495 

United  States  v.  Williams,  1  Cliff. 

5,  11,  579 

United  States  v.  Wilson,  1  Baldw. 

C.  C.  78,  338 

United  States  v.  Wilson,  69  Fed. 

Rep.  584,  281 

United  States  v.  Wilson,  7  Pet. 

150,  256,  257 

United  States  v.  Wood,  3  Wash. 

(C.  C.)  440,  323 

United  States  v.  Woods,  4 

Cranch  C.  C.  484,  129 

United  States  v.  Woods,  14  Peters 

(U.S.)  440,  527 

United  States  v.  Ybanez,  53  Fed. 

Rep.  536,  90,  93 

United  States  v.  Zes  Cloya,  35 

Fed.  Rep.  493,  408 

Upstone  v.  People,  109  111.  169,  209 
Urmston  v.  State,  73  Ind.  175,        516 


TABLE    OF    CASES. 


cm 


[References  at 


Vale  v.  People,  161  111.  309,  97 

Valensin  v.  Valensin,  73  Cal.  106,  227 
Vallereal  v.  State  (Tex.,  1892),  20 

S.  W.  Rep.  557,  435 

Van  Buren  v.  People,  7  Colo 

App.  136,  505 

Vance  v.  State,  56  Ark.  402,  277 

Vanderwerker  v.  People,  5  Wend. 

(N.  Y.)530,  29 

Vandeventer  v.  State,  38  Neb.  592,  21 
Van  Dolson  v.  State,  1  Ind.  App. 

108,  447 

Van  Meter  v.  People,  60  111.  168,  332 
Vann  v.  State,  83  Ga.  44,  266 

Van  Sickle  v.  People,  29  Mich. 

61,  493 

Van  Tassell  v.  State,  59  Wis.  351,  588 
Van  -Walker  v.  State,  33  Tex.  Cr. 

Rep.  359,  436 

Varnadoe  v.  State,  67  Ga.  768,  328 
Varner  v.  State,  72  Ga.  745,  355 

Vaughan  v.  Com.,  86  Ky.  431,  129 
Vaughan  v.  State,  9  Tex.  App. 

563,  524 

Vernon  v.  Vernon,  6  La.  An.  242,  591 
Vess  v.  State,  93  Ind.  211,  546 

Vetten  v.  Wallace,  39  111.  App. 

390,  586,  591,  592 

Vicksburg  &  Meridian  R.  R.  Co. 

v.  O'Brien,  119  U.  S.  99,  121,  122 
Vincent  v.  State,  3  Heisk.  (Tenn.) 

120,  359 

Vinton  v.  Peck,  14  Mich.  287,  493 

Voght  v.  State,  124  Ind.  358,  534 

Voght  v.  State,  145  Ind.  12,  105 

Voght  v.  Com.,  92  Ky.  68,  329 

Von  Pollnitz  v.  State,  92  Ga.  16,  393 
Voorhees,  In  re,  32  N.  J.  L.  141,  560 
Vowells  v.  State,  83  Ky.  193,  245 

w 

Wachsteter  v.  State,  99  Ind.  290, 

272   293 
Wadd  v.  Hazelton,  62  Hun  (N.  Y.) 

602,  217 

Wade  v.  State,  7  Bact.  (Tenn.)  80, 

324 
Wadge,  In  re,  15  Fed.  Rep.  864, 

564,  565,  566 
Wagner  v.  State,  107  Ind.  71,  100,  101 
Wagner  v.  State,  116  Ind.  181, 

195,  206,  294 
Waidley  v.  State,  34  Neb.  250,  352 
Walker  v.  Com.,  1  Leigh  (Va.) 

574,  112 


•e  to  Pages.'] 

Walker  v.  People,  88  N.  Y.  81, 

21,  196,  197,  199 
Walker  v.  State,  28  Ala.  254,  363 

Walker  v.  State,  89  Ala.  74,  369 

Walker  v.  State,  91  Ala.  76, 

41,  102,  327 
Walker  v.  State,  97  Ala.  85,  251,  442 
Walker  v.  State,  104  Ala.  56,  444 

Walker  v.  State,  107  Ala.  5,  528 

Walker  v.  State,  6  Blackf.  (Ind.)  1, 

597 
Walker  v.  State,  92  Ind.  474,  594,  595 
Walker  v.  State,  102  Ind.  502, 

201 ,  391 
Walker  v.  State,  136  Ind.  663,  160,  327 
Walker  v.  State,  78  Mo.  380,  125 

Walkerv   State,  2  Swan.  (Tenn.) 

287  532 

Walker  v.  State,  7  Tex.  App.  245, 

164,  437 
Walker  v.  State,  13  Tex.  App.  618, 

Q9g 

Walker  v.  State,  14  Tex.  App.  609,  11 
Walker  v.  State,  19  Tex.  App.  176, 

216,  217,  221 
Wallace  v.  State,  28  Ark.  531,  161 
Wallace  v.  State,  90  Ga.  117,  133 

Wallace  v.  State  (Ind  ,  1897),  47 

N.  E.  Rep.  13,  405 

Wallace  v.  State,  30  Tex.  758,  369 

Wallace  v.  United  States,  162 

U.  S.  466,  389 

Waller  v.  State,  40  Ala.  325,    476,  477 
Waller  v.  State,  38  Ark.  656,  28 

Wallis  v.  State,  54  Ark.  611, 

46,  347,  349 
Walls  v.  State,  7  Blackf.  (Ind.) 

572,  543 

Walls  v.  State,  125  Ind.  400,  97 

Walsh  v.  People,  65  111.  58,  513 

Walsh  v.  People,  88  N.  Y.  458,  201, 375 
Walston  v.  Com.,  16  B.  Mon. 

(Ky.)  15,  129,  138,  140 

Walter  v.  People,  32  N.  Y.  147,       196 
Walter  v.  State,  105  Ind.  589, 

243,  244,  296 
Walters  v.  People,  6  Park.  Cr. 

Rep.  (N.Y.)15,  109 

Walters  v.  State,  39  Ohio  St.  215, 

184,  187 
Walters  v.  State,  17  Tex.  App.  226,  151 
Walters  v.  State  (Tex.,  1896),  35 

S    W.  Rep.  652,  419 

Walton  v.  Com.,  32Gratt.  (Va.) 

855,  330 

Walton  v.  State,  88  Ind.  9,  551 

W ampler  v.  State,  28  Tex.  App.352,  10 
Wantland  v.  State,  145  Ind.  38,        10 


CIV 


TABLE    OF    CASES. 


[References  are  to  Pages."] 


Ward  v.  People,  3  Hill  (N.  Y.) 

895,  163 

Ward  v.  State,  41  Tex.  611,  363 

Ware  v.  State,  59  Ark.  379,  184 

Ware  v.  State,  67  Ga.  349,        ,        185 
Ware  v.  State,  96  Ga.  349,  340 

Ware  v.  State  (Tex.,  1897),  38  S. 

W.  Rep.  198,  108,  292 

Waring  v.  United  States,  7  Ct.  CI. 


501, 
Warlick  v. 
Warner  v. 
Warraee  v. 
Warren  v. 

W.  Rep. 
Warren  v. 


257 

White,  76  N.  Car.  175,  590 

462 

46 


Com.,  2  Va.  Cas.  95, 
State.  27  Fla.  362, 
Com.  (Ky.,  1896),  35  S. 
1028,  301 

State,  94  Ala.  79,  542 

Warren  v.  State,  9  Tex.  App.  619,  137 
AVarren  v.  State,  31  Tex.  Cr.  Rep. 

573,  391 

Warrickshall's  Case,  1  Leach  C.  C. 

298.  366 

Wasden  v.  State,  18  Ga.  264,  21 

Wash  v.  Com.,  16  Gratt.  (Va.) 

530,  487 

Washington  v.  State,  72  Ala.  272,  348 
Washington  v.  State,  92  Ala.  272,  43 
Washington  v.  State,  36  Ga.  242,  542 
Washington  v.  State,  23  Tex.  App. 

336,  526,  529 

Washington  v.  State  (Tex.),  32 

S.  W.  Rep.  582,  580 

Wassels  v.  State,  26  Ind.  30,  332 

Waterman  v.  People,  67  111.  91,  495 
Waters  v.  People,  104  111.  544,  362 
Waters  v.  State,  53  Ga.  567.  433,  434 
Waters  v.  State,  30  Tex.  App.  284,  527 
Watkins  v.  Carlton,  10  Leigh  (Va.) 

560,  591 

Watkins  v.  State,  89  Ala.  82,  60,  375 
Watson  v.  Com.,  95  Pa.  St.  418, 

184,  188 
Watson  v.  Miller,  82  Tex.  279,  269 
Watson  v.  People,  67  N.  Y.  561,  504 
Watson  v.  State,  3  Ind.  123,  531 

Watson  v.  State,  36  Miss.  593,  363 

Watson  v.  State,  9  Tex.  App.  237,  410 
Watson  v.  State,  32  Tex.  Cr.  Rep. 

80,  524 

Watt  v.  People,  126  111.  9,  83 

Watt  v.  State,  97  Ala.  72,  519 

Watts  v.  Owens,  62  Wis.  512,  593 

Wax  v.  State,  43  Neb.  18,  505 

Weat  v.  State,  76  Ala.  98,  179 

Weatherford  v.  State,  31  Tex.  Cr. 

Rep.  530,  242 

Weaver,  In  re,  9  Pa.  Co.  Ct.  Rep. 

516,  219 

Weaver  v.  State,  24  Ohio  St.  584,  32 
Webb.  v.  State,  106  Ala.  52,  101 


Webb  v.  State,  73  Miss.  10, 
Webb  v.  State  (Miss.,  1897),  21 

So.  Rep.  133, 
Webb  v.  State,  8  Tex.  App.  310, 
Webb  v.  State,  17  Tex.  App.  205, 
Webber  v.  State,  119  Pa.  St.  223, 
Webster  v.  People,  92  N.  Y.  422, 
Wedgewood's  Case,  8  Me.  75, 
Weed  v.  People,  3  Thomp.  &  C. 

50, 
Weeks  v.  State,  79  Ga.  36, 
Weinberg  v.  State,  25  Wis.  370, 
Weineeke  v.  State,  34  Neb.  14, 
Weitzel  v.  State,  28  Tex.  App. 

593 
Welch  v.  Clark,  50  Vt.  386, 
Welch  v.  State,  104  Ind.  347,    150, 
Wellar  v.  People,  30  Midi.  16, 
Wells,  Ex  parte,  18  How.  307, 
Wells  v.  Fletcher,  5  C.  &  P.  12, 
Welsh  v.  State,  96  Ala.  92, 
Welsh  v.  State,  97  Ala.  1, 
Welsh  v.  State  (Ga.),  11  So. 

450, 

Wesley  v.  State,  65  Ga.  731, 
Wesley  v.  State,  37  Miss.  327, 

100, 


Rep. 


385 

450 
346 

5.'54 
2D.-) 
502 
445 

413 

581 

463 

46 

44 
599 
297 
397 
256 
236 
178 
150 

18 
476 

.  386 

West  v.  State,  18  Tex.  App.  640,  388 
West  v.  State,  1  Wis.  186, 

26,  45,  186,  309 
Westbrook  v.  People,  126  111.  81,  391 
Westbrook  v.  State,  23  Tex.  App. 

401,  484 

Weston  v.  Brown,  30  Neb.  609,  268 
Westover  v.  Insurance  Co.,  99 

N.  Y.  60,  226 

Weyrich  v.  People,  89  111.  90,  394 

Whalen  v.  Com.,  90  Va.  544,  358,  359 
Whaley  v.  State,  11  Ga.  123,  148 

Wheat  v.  State,  110  Ala.  68,  321 

Wheat  v.  State,  6  Mo.  455,  34 

Wheatley  v.  Williams,  1  M.  &  W. 

533,  218 

Wheeler,  In  re,  34  Kan.  96,  588 

Wheeler  v.  Hill,  16  Me.  329,  218 

Whipp  v.  State,  34  Ohio  St.  87,  232 
Whitaker  v.  State,  79  Ga.  87,  129,  138 
Whitaker  v.  State,  17  S.  W.  Rep. 

358,  392 

White,  In  re,  55  Fed.  Rep.  54, 

557,  558,  561 
White  v.  Bailey,  10  Mich.  155,  205 
White  v.  Com.,  80  Kv.,  480,  104 

White  v.  D.  S.  Morgan  Co.,  119 

Ind.  338,  279 

White  v.  State,  72  Ala.  195,  442 

White  v.  State,  74  Ala.  31,  444 

White  v.  State,  86  Ala.  69,  218,  219 
White  v.  State,  103  Ala.  72,  514 


TABLE    OF    CASES. 


CV 


[References  are  to  Pages."] 


White  v.  State  (Ala.,  1897),   21 

So.  Rep.  330,  103,  129,  131,  150 

White  v.  State,  38  S.  W.  Rep.  169,  164 
White  v.  State,  3  Heisk.  (Tenn.) 

338,  367 

White  v.  State,  30  Tex.  App.  652, 

86,  140,  397 
White  v.  State,  32  Tex.  Cr.  Rep. 

625,  10,  177 

White  v.  United  States,  17  S.  Ct. 

38,  101 

Whitehurst  v.  Com.,  79  Va.  556, 

323,  584 
Whitley  v.  State,  38  Ga.  50,  137 

Whitley  v.  State,  66  Ga.  656,  547 

Whitlock  v.  State,  4  Ind.  App.  432,  540 
Whitlock,  In  re,  51  Hun  (N.  Y.) 

351,  219 

Whitlow  v.  State  (Tex.,  1897),  18 

S.  W.  Rep.  865,  94 

Whitman  v.  State,  34  Ind.  360,  597 
Whittaker  v.  Com.,  95  Ky.  632,  458 
Whittaker  v.  State,  50  Wis.  518, 

466,  477 
Whittem  v.  State,  36  Ind.  196,  522 
Whizenant  v.  State,  71  Ala.  383,  356 
Wiborg  v.  United  States,  163  U.  S. 

632,  341 

Wiggins  v.  People,  4  Hun  (N.  Y.) 

540,  492 

Wiggins  v.  People,  93  U.  S.  465,  390 
Wilber  v.  Scherer,  13  Ind.  App. 

428,  269 

Wilcox  v.  Nolze,  34  Ohio  St.  520,  558 
Wilcox  v.  Wilcox,  46  Hun  (N.  Y.) 

32,  61 

Wilde  v.  Com.,  2  Mete.  (Mass.) 

408,  573 

Wiley  v.  State,  74  Ga.  840,  42,  355 
Wiley  v.  State,  52  Ind.  516,  546 

Wiley  v.  State,  3  Coldw.  (Tenn.) 

362,  356 

Wilke  v.  People,  53  N.  Y.  525,  231 
Wilkerson  v.  State,  31  Tex.  Cr. 

Rep.  86,  109,  382,  385 

Wilkins  v.  State,  98  Ala.  1,  73 

Wilkins  v.  State  (Tex.,  1896),  34 

S.  W.  Rep.  627,  396 

Willard  v.  State,  27  Tex.  App. 

386,  181 

Willard  v.  Superior  Court,  82  Cal. 

456,  310 

Willet  v.  Com.,   13  Bush  (Ky.) 

176,  28 

Williams  v.  Com.  (Ky.),  18  S.  W. 

Rep.  364,  584 

Williams  v.  Com.  (Ky.,  1897),  37 

S.  W.  Rep.  680,  543 

Williams  v.  Com.,  29  Pa  St.  102,     165 
viii     Cr.  Ev. 


Williams  v.  Com.,  91  Pa.  St.  493, 

525  527 
Williams  v.  Com.  (Va.,  1896),  22  ' 

S.  E.  Rep.  859,  422 

Williams  v.  Dickenson,  28  Fla. 

90,  259 

Williams  v.  People,  54  111.  422,  389 
Williams  v.  People,  166  111.  132,  110 
Williams  v.  State,  44  Ala.  24, 

231,  459,  464 
Williams  v.  State,  52  Ala.  411,  179 
Williams  v.  State,  81  Ala.  1,  550 

Williams  v.  State  (Ala.,  1896),  19 

So.  Rep.  530,  254 

Williams  v.  State  (Ala.,  1897),  21 

So.  Rep.  463,  595 

Williams  v.  State,  42  Ark.  35, 

154,  156,  157 
Williams  v.  State  (Ark.,  1891),  16 

S.  W.  Rep.  816,  147,  383 

Williams  v.  State,  32  Fla.  251,  272 
Williams  v.  State,  19  Ga.  402,  322 

Williams  v.  State,  67  Ga.  260,  28 

Williams  v.  State  (Ga.,  1897),  25 

S.  E.  Rep.  681,  416 

Williams  v.  State,  47  Ind.  568,  550 
Williams  v.  State,  64  Md.  384, 

372,  374 
Williams  v.  State,  47  Miss.  609,  467 
Williams  v.  State,  73  Miss.  820,  17 
Williams  v.  State,  46  Neb.  704,  340 
Williams  v.  State,  14  Ohio  222,  468 
Williams  v.  State,  38  S.  W.  Rep. 

999,  163 

Williams  v.  State,  19  Tex.  App. 

276,  162 

Williams  v.  State,  21  Tex.  App. 

256,  45 

Williams  v.  State,  22  Tex.  App. 

497,  152 

Williams  v.  State,  24  Tex.  App. 

637,  297 

Williams  v.  State,  25  Tex.  App. 

76,  290 

Williams  v.  State,  28  Tex.  App. 

301,  77 

Williams  v-  State,  33  Tex.  Cr. 

Rep.  128,  86 

Williams  v.  State,  34  Tex.  Cr. 

Rep.  523,  357 

Williams  v.  State  (Tex.,  1890),  13 

S.  W.  Rep.  609r  435 

Williams  v.  State  (Tex.,  1892),  19 

S.  W.  Rep.  897,  414 

Williams  v.  State  (Tex.,  1896),  32 

S   W.  Rep.  532,  483 

Williams  v.  State  (Tex.,  1896),  34 

S.  W.  Rep.  271,  533 


CV1 


TABLE    OF    CASKS. 


[References 

William3  v.  State  (Tex.),  34  S.  W. 

Rep.  943,  24 

Williams  v.  United  States,  3  App. 

Dec.  335,  43,  254 

Williams  v.  United  States,  137 

U.  S.  113,  583 

Williams  v.  Wager,  64  Vt.  326, 

267,  268 
Williamson  v.  State,  30  Tex.  App. 

330,  26 

Williford  v.  State  (Tex.,  1897),  37 

S.  W.  Rep.  761,  154,  294 

Willingham  v.  State,  33  Tex.  Cr. 

Rep.  98,  113 

Willis  v.  People,  32  N.  Y.  715,         193 
Willis  v.  State,  12  Ga.  444,  305 

Willis  v.  State,  93  Ga.  208,  163 

Willis  v.  State,  3  Heisk.  (Tenn.) 

141,  29 

Wilson  v.  Boeraem,  15  John. 

(N.  Y.)  286,  134 

Wilson  v.  People,  94  111.  299,  274,  394 
Wilson  v.  Rastall,  4  T.  R.  758, 

217,  223 
Wilson  v.  State,  31  Ala.  508,  533 

Wilson  v.  State,  61  Ala.  151,  524 

Wilson  v.  State,  68  Ala.  41,  546 

Wilson  v.  State,  73  Ala.  527, 

27,  452,  455 
Wilson  v.  State,  110  Ala.  1,  166,391 
Wilson  v.  State  (Ark.),  36  S.  W. 

Rep.  842,  46 

Wilson  v.  State,  58  Ga.  328,  448 

Wilson  v.  State,  57  Ind.  71,  315 

Wilson  v.  State,  2  Ohio  N.  S.  319,  459 
Wilson  v.  State,  41  Tex.  320,  374 

Wilson  v.  State,  45  Tex.  76,  355 

Wilson  v.  State,  12  Tex.  App. 

481,  355 

Wilson  v.  State  (Tex.,  1897),  38 

S.  W.  Rep.  610,  297 

Wilson  v.  State  (Tex.,  1897),  38 

S.  W.  Rep.  1013,  418 

Wilson  v.  United  States,  149  U.  S. 

60,  82 

Wilson  v.  United  States,  162  U.  S. 

613,  63,149,161.373,399 

Wilson  v.  Woodside,  57  Me.  489,    598 
Winn  v.  Patterson,  9  Pet.  (U.  S.) 

663,  49 

Winsett  v.  State,  57  Ind.  26,  584 

Winslow  v.  State,  76  Ala.  42,  429 

Winslow  v.  State,  97  Ala.  68,  504 
Wisconsin  v.  Pelican  Ins.  Co., 

127  U.  S.  265,  257 
Wisdom  v.  People,  11  Colo.  170, 

88,  90,  91,  185 

Wise  v.  State,  2  Kan.  419,  386 


are  to  Pages. ] 

Wise  v.  State  (Ga.,  1897),  25  S.  E. 

Rep.  846,  372 

Witt  v.  State,  6  Cold.  (Tenn.)  5,  375 
Wixon  v.  People,  5  Park.  Cr.  Rep. 

119,  86,  87,  90 

Wolf  v.  State,  4  Tex.  App.  332,  358 
Wolverton  v.  State,  16  Ohio  17:;,  462 
Wong  Hane,  In  re,  108  Cal.  680,  23 
Wood  v.  People,  53  N.  Y.  511,  r,7"> 
Wood  v.  State,  34  Ark.  341,  207,  208 
Wood  v.  State,  31  Fla.  221,  17 

Wood  v.  State,  48  Ga.  192,  446,  454 
Wood  v.  State,  92  Ind.  269, 

24,  263,  270,  271,  389,  399 
Wood  v.  State,  58  Miss.  741,  202 

Wood  v.  State,  46  Neb.  58,  467,  469 
Wood  v.  State  (Tex.,  1897),  41 

S.W.Rep.618,  259 

Woodbury  v.  State,  69  Ala.  242, 

504,  505 
Woodcock's  Case,  2  Leach  Cr.  Law 

563,  128,  131,  133 

Woodruff  v.  State,  61  Ark.  157, 

57,  267,  502 
Woodruff  v.  State,  31  Fla.  320,  17 

Woodruff  v.  State  (Tex.,  1891),  20 

S.  W.  Rep.  573,  442 

Woods  v.  People,  (N.  Y.,)  480 

Woods  v.  Miller  Co.,  55  Iowa  168,  229 
Woods  v.  State,  76  Ala.  35,  235 

Woods  v.  State,  63  Ind.  353,  81 

Woodin  v.  People,  1  Park.  Cr. 

Rep.  464,  471,  475,  472 

Woodsides  v.  State,  2  How.  (Miss.) 

655,  140 

Woodward  v.  Leavitt,  107  Mass. 

453,  241 

Woodward  v.  State,  54  Ga.  106,  440 
Woodward  v.  Blue,  107  N.  Car. 

407,  591 

Woodward  v.  Shaw,  18  Me.  304,  599 
Woodward  v.  State  (Tex.,  1895), 

28  S.  W.  Rep.  204,  367 

Woodworth  v.  State,  26  Ohio  St. 

196,  511 

Woodworth,  Ex  parte,  29  W.  L. 

Bui.  315,  279 

Woolen  v.  Wire,  110  Ind.  251,  326 
Woolfolk  v.  State,  85  Ga.  69, 

170  327   392 
Woolsey  v.  State,  30  Tex.  App. 

346,  429 

Wooten  v.  Wilkens,  39  Ga.  393,  134 
Work  v.  Carrington,  34  Ohio  St. 

64,  561 

Workman  v.  State,  4  Sneed 

(Tenn.)  2425,  236 

Worthington  v.  Mencer,  96  Ala. 

310,  252 


TABLE    OF    CASES. 


CV11 


[References  are  to  Pages.] 


Wray  v.  People,  78  111.  212,  328 

Wren  v.  State,  70  Ala.  1,  534 

Wright,  Ex  parte,  65  Ind.  504,  520 
Wright  v.  Cora.,  82  Va.  183,  440,  441 
Wright  v.  Hicks,  12  Ga.  155,  591 

Wright  v.  Mayer,  6  Ves.  280,  222 

Wright  v.  People,  4  Neb.  407,  196 

Wright  v.  State,  108  Ala.  60,  447 

Wright  v.  State,  30  Ga.  325,  370 

Wright  v.  State,  50  Miss.  332,  51,  168 
Wright  v.  State,  21  Neb.  496,  10 

Wright  v.  State,  22  Tex.  App.  670, 

533 
Wright  v.  State,  31  Tex.  Cr.  Rep. 

354,  452,  453 

Wroe  v.  State,  20  Ohio  St.  460, 

77,  137 
Wrye  v.  State,  95  Ga.  466,  74,  236 

Wyatt  v.  People,  17  Colo.  202,        316 


Yanke  v.  State,  51  Wis.  464, 


78,  301 


Yarbrough  v.  State  (Ala.,  1897), 

22  So.  Rep.  534,  362 

Yarborough  v.  State,  41  Ala.  405,  111 

Yates  v.  People,  38  111.  527.      280,  281 

Yates  v.  People,  32  N.  Y.  509,  510 

Yates  v.  State,  47  Ark.  172,  367 
Yates  v.  State,  10  Yerg.  (Tenn.) 

549,  45 

Yeoman  v.  State,  21  Neb.  171,  457 

Young  v.  State,  95  Ala.  4,  381 

Young  v.  State,  65  Ga.  525,  216 
Young  Ah  Gow,  Ex  parte,  73  Cal. 

438,  574 

z 

Zabriskie  v.  State,  43  N.  J.  L.  640, 

27,  452,  454,  455 
Zeehandelaar,  Ex  parte,  71  Cal.  238, 

279 
Zink  v.  People,  77  N.  Y.  114,  500 

Zoldoske  v.  State,  82  Wis.  580, 

11,  111,  377,  378,  379 
Zollicoffer  v.  State,  16  Tex.  App. 

312,  86 

Zucker  v.  Carpeles,  88  Mich.  413,   272 


CRIMINAL  EVIDENCE. 


CHAPTER  I. 


CIRCUMSTANTIAL    EVIDENCE    AND    REASONABLE    DOUBT. 


§  1.   Necessity  for  rules  of  evidence  in 
judicial  proceedings. 

2.  Elements  of  probability  and  im- 

probability as  affecting  the 
proof  of  facts  and  circum- 
stances. 

3.  The  character  and  mental  capac- 

ity of  a  witness  as  relating  to 
the  credibility  of  his  testimony. 

4.  The  motive  of  the  witness  to  mis- 

represent. 

5.  Concurrent  or  corroborative  tes- 

timony. 

6.  Circumstantial  evidence — To  sus- 

tain conviction  must  exclude 
every  rational  hypothesis  ex- 
cept that  of  guilt. 

7.  Circumstantial        evidence       to 

prove  corpus  delicti  in  trial  for 
homicide. 

8.  Distinction    between    civil    and 

criminal  proceedings  as  re- 
gards relevancy  and  manner 
of  proof. 

§  1 .   Necessity  for  rules  of  evidence  in  judicial  proceedings. — 

That  the  major  part  of  the  knowledge  which  is  possessed  by 
any  individual  is  derived  wholly  from  information  imparted 
to  him  by  others  is  a  truism.  In  other  words  the  facts  which 
constitute   the   starting   point   in   the   search  for  truth  in  any 

(1) 


§  9.  The  weight  of  evidence — Rules 
in  civil  and  criminal  cases  dis- 
tinguished— Reasonable  doubt. 

Difficulty  of  defining  reasonable 
doubt. 

Demonstration  and  belief  be- 
yond a  reasonable  doubt  dis- 
tinguished. 

Attempted  definitions  of  reasona- 
ble doubt. 

Precaution  to  be  employed  in  de- 
fining reasonable  doubt. 

Doctrine  of  reasonable  doubt  ap- 
plicable to  misdemeanors  as 
well  as  to  felonies. 

Reasonable  doubt  in  the  mind  of 
one  juror. 

Statutory  changes  in  rules  of 
evidence  and  modes  of  proced- 
ure. 


10. 


11. 


12. 


13. 


14. 


15. 


16. 


2  CRIMINAL    EVIDENCE.  §  2 

sphere  of  investigation  are  usually  furnished  to  the  mind 
through  other  channels  than  observation  or  experience.  This 
is  particularly  the  case  in  the  judicial  investigation  of  crime, 
by  means  of  trial  by  jury,  for  the  fact  that  any  person  has  a 
knowledge  of  the  facts  of  the  crime  is  sufficient  to  disqualify 
him  as  a  juror.  So,  too,  the  jurors  are  sworn  to  render  a  verdict 
upon  the  evidence  alone,  and  if  any  one  of  them  knows  any- 
thing of  his  own  knowledge  he  must  be  sworn  as  a  witness. 

We  must  recognize  the  fact  that  the  disposition  to  believe, 
that  is,  to  rely  upon  what  others  tell  us,  is  inherent,  and  per- 
sists until  we  become  incredulous,  and  learn  to  distrust  the 
statements  of  our  fellows  because  so  frequently  deceived  by 
them.  For  at  a  very  early  period  in  life  we  learn,  because  of 
the  falsehoods  uttered  to  us,  or  to  others  in  our  hearing,  that 
an  urgent  necessity  exists  for  the  discovery  of  principles,  and 
the  creation  and  use  of  rules,  by  which  the  truth  of  what  is 
said  may  be  separated  from  the  false.  Hence,  the  necessity 
and  importance  of  rules  of  evidence  which  will  facilitate  the 
ascertainment  of  truth. 

Besides  the  technical  rules  which  regulate  the  science  of 
judicial  evidence  and  the  production  and  employment  of  testi- 
mony in  court,  other  well-known  principles  of  general  applica- 
tion in  every-day  life  exist  which  are  commonly  employed  in 
ascertaining  the  truth.     These  we  must  now  consider. 

§  2.  Elements  of  probability  and  improbability  as  affect- 
ing the  proof  of  facts  and  circumstances. — The  truth  of  any 
statement  of  fact  may  be  considered  from  the  standpoint  of 
the  probability  or  improbability  of  the  fact  per  se.  Improba- 
bility is  to  be  measured  by  the  degree  with  which  the  fact 
stated  accords  with  the  general  experience  of  mankind.  If  the 
new  fact  is  in  accord  with  other  facts  which  are  a  part  of  the 
sum  total  of  our  knowledge,  we  say  it  is  probable,  and  less  evi- 
dence, or  evidence  of  a  less  satisfactory  character,  is  required  to 
convince  us  of  its  truth  than  when  the  new  fact  is  wholly  un- 
like anything  in  our  experience.  Thus,  we  readily  believe 
that  a  man  has  died  from  a  knife  thrust  through  his  heart, 


$  2         CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT. 

from  our  knowledge  of  the  physiological  functions  of  that 
organ  and  the  mortal  character  of  such  a  wound. 

The  confirmation  of  the  truth  of  a  statement  of  fact  by  means 
of  knowledge  already  possessed  will  vary  according  to  the 
nature  of  the  new  fact  and  the  situation  of  the  individual.  So 
a  statement  involving  a  scientific  discovery  or  invention,  as, 
for  example,  that  oral  communication  can  be  had  by  telephone 
between  persons  who  are  hundreds  of  miles  apart,  will  be  re- 
garded as  extremely  probable  or  as  utterly  absurd,  according 
as  it  is  made  to  a  well  educated  man  or  to  an  illiterate  savage. 
If  the  new  fact  is  utterly  irreconcilable,  not  only  with  the  ex- 
perience and  knowledge  already  possessed  by  us,  but  with  the 
known  laws  that  govern  the  operation  of  the  physical  universe, 
we  say  that  it  is  impossible,  that  it  can  not  be  true.  The 
dividing  line  between  the  possible  and  the  probable  is  dim- 
cult  of  ascertainment.  It  wavers  according  to  the  general 
comprehension  of  the  rules  which  regulate  the  physical  uni- 
verse and  the  mutations  of  human  affairs.  So  that  new  facts 
which  now  seem  utterly  impossible,  may,  in  the  light  of  a 
fuller  investigation  and  knowledge  of  natural  laws,  be  regarded 
merely  as  improbable. 

So  if  it  should  be  asserted  as  a  fact  that  an  idiot  or  imbecile, 
while  absolutely  devoid  of  mental  capacity,  had  successfully 
demonstrated  an  abstruse  scientific  problem,  the  impossibility 
that  such  a  statement  was  true  would  cause  its  immediate  re- 
jection. If,  however,  it  were  asserted  that  an  idiot  had,  after 
a  surgical  operation,  manifested  a  limited  degree  of  mental 
power,  we  would  not,  in  view  of  the  wonderful  modern  develop- 
ment of  surgical  science,  regard  such  an  assertion  as  impossi- 
ble, though  it  may  be  somewhat  improbable.  A  statement 
affirming  a  fact  which  is  impossible  is  absolutely  incredible, 
and  no  testimony  can  make  us  believe  it.  But  the  mere  pos- 
sibility of  an  event  does  not  render  a  statement  credible  except 
so  far  as  its  probability  appears  upon  a  comparison  with  our 
experience.  So  it  is  possible  for  a  very  strong  man  to  lift  a 
barrel  of  merchandise  weighing  several  hundred  pounds.  But 
the  statement  that  a  person  of  ordinary  strength  had  stolen  a 


4  CRIMINAL    EVIDENCE.  §  3 

barrel  containing  four  hundred  pounds  of  lead,  and  had,  with- 
out any  means  of  conveyance,  carried  the  same  half  a  mile,  is 
so  improbable  that  no  sane  man  would  believe  it. 

§  3.  The  character  and  mental  capacity  of  a  witness  as  relat- 
ing to  the  credibility  of  his  testimony. — Our  knowledge  that 
a  witness  habitually  tells  the  truth  is  a  most  important  element 
in  forming  our  estimate  of  the  credibility  of  his  evidence. 
For  this  reason  it  is  always  permissible  to  show  that  a  witness 
is  reputed  to  be  untruthful  among  those  who  know  him  best, 
and  by  such  an  attack  upon  his  character  for  veracity  the 
credibility  of  his  evidence  may  be  impeached. 

An  habitual  respect  for  truth,  while  very  important,  is  but 
one  element  in  credibility.  It  is  necessary  that  the  witness 
should  possess  adequate  mental  capacity  to  comprehend  the 
facts  to  which  he  is  testifying.  He  should  also  have  had  a 
reasonably  good  opportunity  for  observation  and  should  have 
directed  his  attention  to  the  facts  in  question.  Because  of  the 
absence  of  fully  developed  mental  powers,  the  evidence  of  in- 
fants and  weak-minded  or  insane  persons,  while  no  longer  in- 
competent, is  only  credible  so  far  as  their  mental  capacity  is 
commensurate  with  the  facts  seen  and  testified  to  by  them.1 

The  memory  of  a  witness  must  also  be  considered.  Some  per- 
sons have  a  good  memory  for  abstract  principles,  while  finding 
it  extremely  difficult,  and  often  impossible,  to  recollect  facts, 
figures  or  faces.  Others  have  a  good  verbal  memory,  which  re- 
tains accurately  and  fully  the  language  of  others.  With  the 
great  majority  of  persons,  however,  the  memory  is  chiefly  con- 
cerned with  and  exercised  upon  the  common  events  and  inci- 
dents of  their  own  experience  ;  or  of  the  experience  of  others 
with  whom  they  have  maintained  social  or  business  relations. 
Hence,  it  follows  that  facts  which  most  affect  the  personal  in- 
terests of  the  witness  will  make  the  deepest  impression  on  his 
memory,  and  his  mind  will  be  most  active  and  retentive  of 
that  knowledge  the  recollection  of  which  will  be  of  the  greatest 
advantage  to  him. 

1Post,  §202. 


§  4  CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.  5 

In  this  connection  it  may  be  noted  that  the  vividness  of  the 
recollection  of  an  event  is  in  proportion  to  its  proximity  in 
point  of  time  as  well  as  its  personal  importance  in  relation  to 
the  witness.  So  where  the  trial  takes  place  many  years  after 
the  commission  of  a  crime,  the  facts  that  the  chief  prosecuting 
witness  was  a  young  child  at  the  date  of  the  crime  and  that 
the  other  witnesses  for  the  state  are  now  very  old  are  to  be 
considered  by  the  jury.1 

§4.  The  motive  of  the  witness  to  misrepresent. — Though 
we  may  have  been  repeatedly  deceived  by  the  misrepresenta- 
tions of  others,  we  find,  by  experience,  that  men,  as  a  rule,  tell 
the  truth.  Where  neither  prejudice  nor  passion  exists,  and 
where  the  individual  has  no  private  or  personal  interests 
to  advance  by  distorting  the  truth,  we  may  rely  upon  the 
credibility  of  his  testimony,  if  it  is  probable  and  if  we  believe 
him  to  be  an  intelligent  man,  possessing  adequate  powers  and 
opportunities  for  acquiring  knowledge.  The  entire  absence  of 
all  motive  to  give  false  testimony  justifies  an  assumption  that 
testimony  is  true,  for  sane  men  do  not  usually  act  without 
motive,  and  will  not  ordinarily  violate  the  principles  of  truth 
without  some  object  in  doing  so,  particularly  if  they  are  ques- 
tioned under  oath,  with  the  fear  of  punishment  for  perjury  be- 
fore their  eyes.  Accordingly,  in  the  case  of  persons,  such  as 
police  and  private  detectives  and  others  engaged  in  the  detec- 
tion of  crime,  or  expert  witnesses  who  testify  under  pay,2  who, 
from  their  professional  occupation,  character,  or  position,  are 
inclined  to  take  prejudiced  or  distorted  views  of  human  nature, 
it  will  require  a  high  degree  of  credibility  in  the  evidence  to 
satisfy  the  mind  of  an  impartial  hearer. 

On  the  other  hand,  where  no  motive  can  be  imagined  strong 
enough  to  prompt  the  witness  to  make  a  false  statement,  and 
where  all  motives  that  exist  in  his  bosom  prompt  him  to  tell 
the  truth,  we  have  every  reason  to  accept  his  evidence  as  credi- 

1  People  v.  Hancock,  7  Utah  170,  25  cause  in  which  they  are  embarked 
Pac.  Rep.  1093.  that  hardly   any  weight    should    be 

2  "Skilled  witnesses  come  with  such  given  to  their  evidence."   In  re  Tracy, 
a  bias  on  their  minds  to  support  the  10  CI.  &  F.  154,  191. 


6  CRIMINAL    EVIDENCE.  §  5 

ble,  irrespective  of    the    poor  opinion    we  may    have    of   his 
veracity. 

Again,  our  belief  in  the  truthfulness  of  a  witness  is  confirmed 
when  we  find  him  narrating  incidents  which  we  have  ourselves 
observed,  when  placed  in  similar  circumstances.  On  the  other 
hand,  he  may  relate  minor  incidents  which,  being  credible 
and  probable,  as  well  as  consistent  with  the  main  facts,  are  so 
startling  and  original  that,  considering  his  mental  capacity, 
they  could  not  have  been  invented  by  him. 

§  5.  Concurrent  or  corroborative  testimony. — The  confidence 
we  place  in  the  testimony  of  a  witness  may  be  increased  or  di- 
minished by  the  concurrence  of  his  testimony  with  that  of 
others.  If  the  testimony  of  other  witnesses  to  the  same  facts, 
or  to  facts  calculated  to  produce  the  same  results,  is  credible  in 
itself,  consistent  with  the  testimony  first  offered,  and  the  char- 
acter of  the  witnesses  is  not  impeached,  the  corroboration,  in 
the  absence  of  collusion,  is  almost  conclusive.  The  same  result 
is  effected  where  the  evidence  of  one  witness  is  confirmed  by  that 
of  another  witness  to  the  same  facts,  and  it  also  appears  that 
the  witnesses  are  hostile  to  each  other  and  hence  actuated  by 
different  motives.  Here  the  relations  of  both  witnesses  to  the 
cause  of  action  are  so  diametrically  opposed  that  collusion  is 
absolutely  impossible. 

No  witness  can  fairly  be  expected  to  remember  all  the  de- 
tails of  any  transaction,  and  if  he  claims  to  do  so  suspicion  is 
quickly  aroused.  But  where  he  unintentionally  omits  details 
which  are  supplied  by  other  witnesses,  or  where  he  apparently 
contradicts  other  witnesses  on  minor  points  and  the  contradic- 
tion is  fully  reconcilable  by  anyone  who  possesses  a  full 
knowledge  of  the  whole  subject  or  transaction,  his  hearers 
may  well  feel  justified  in  believing  that  his  narrative  is  trust- 
worthy because  wholly  unpremeditated  and  unfabricated  by 
him. 

Another  element  affecting  the  credibility  of  evidence  is  found 
in  the  frequent  occurrence  of  undesigned  coincidences,  which, 
though  sometimes  startling  and  unexpected,  are  unaccounta- 


§  5  CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.  7 

ble  except  upon  the  hypothesis  that  the  narrative,  of  which 
they  form  a  part,  is  true.  No  event  stands  alone.  It  is  the 
result  of  others  which  precede  it.  It  may  in  its  turn  be  the 
fruitful  cause  of  many  others  which  follow  or  relate  to  it.  So 
every  fact  or  circumstance  is  connected  with  others  of  a  col- 
lateral nature,  rendering  it  well  nigh  impossible  for  anyone  to 
concoct  a  narrative  which,  upon  comparison  with  other  and  re- 
lated circumstances,  will  stand  the  test.  Even  by  comparing  the 
various  parts  of  the  story,  a  mind  trained  in  the  habit  of  in- 
vestigation may  quickly  ascertain  the  truth  or  falsity  of  the 
narrative;  for,  in  such  a  case,  the  fabrication,  however  skill- 
fully constructed,  will  crumble  to  pieces  by  reason  of  its  in- 
herent lack  of  verity. 

Again,  the  well-recognized  connection  often  observed  be- 
tween collateral  or  subordinate  facts  which  are  proved  or  ad- 
mitted and  the  main  fact  in  issue  frequently  furnishes  most  co- 
gent and  satisfactory  proof  of  the  existence  of  the  latter.  This  is 
only  applying  to  the  law  of  evidence  the  principles  of  inductive 
reasoning,  which  are  used,  often  unconsciously,  by  all  men  in 
the  conduct  of  their  most  trivial  as  well  as  of  their  most  im- 
portant affairs.  Such  a  process  furnishes  a  basis  for  the  di- 
vision of  evidence  into  direct  and  circumstantial.  The  appli- 
cation of  such  principles  allows  the  jury  to  draw  inferences  or 
presumptions  of  fact  from  other  facts  which  are  proved  to 
their  complete  satisfaction.  On  the  other  hand,  it  has  opened 
the  door  for  presumptions  of  law,  which  are  only  presumptions 
of  fact  that  have,  from  frequent  recurrence,  become  rules  of 
law.1 

1  "All  evidence  is,  in  a  strict  sense,  and  evidence  which  is  direct  as  con- 
more  or  less  circumstantial ;  whether  sisting  in  the  positive  testimony  of 
consisting  of  facts  which  permit  the  witnesses ;  and  the  difference  is  ma- 
inference  of  guilt,  or  whether  given  terial  according  to  the  degree  of  ex- 
by  eye-witnesses;  for  the  testimony  actness  and  relevancy,  the  weight  of 
of  eye-witnesses  is  based  upon  cir-  the  circumstances  and  the  credibility 
cumstances  more  or  less  distinctly  of  witnesses.  The  mind  may  be  re- 
and  directly  observed.  But,  of  course,  luctant  to  conclude  upon  the  issue  of 
there  is  a  difference  between  evidence  guilt  in  criminal  cases  upon  evidence 
consisting  in  facts  of  a  peculiar  nature  which  is  not  direct,  and  yet,  if  the 
and  hence,  giving  rise  to  presumptions,  facts  brought  out,  taken  together,  all 


8 


CRIMINAL    EVIDENCE. 


§6 


§  6.  Circumstantial  evidence — To  sustain  conviction  must  ex- 
clude every  rational  hypothesis  except  that  of  guilt. — The  ne- 
cessity of  frequent  resort  to  circumstantial  evidence  to  prove 
guilt  in  criminal  proceedings  is  apparent  in  the  nature  of  things. 
Whenever  possible  the  criminal  will  endeavor  to  perform  his  ne- 
farious deeds  in  secrecy,  and  where  no  eye-witnesses  are  present 
to  behold  him.  So  he  will  choose  the  time  and  occasion  which 
are  most  favorable  to  concealment,  and  sedulously  scheme  to 
render  detection  impossible.  Circumstantial  evidence  alone  is 
enough  to  support  a  verdict  of  guilty  of  the  most  heinous  crime, 
provided  the  jury  believe  beyond  a  reasonable  doubt  that  the  ac- 
cused is  guilty  upon  the  evidence.1  No  greater  degree  of  cer- 
tainty is  required  where  the  evidence  is  circumstantial  than 
where  it  is  direct,  for  in  either  case  the  jury  must  be  convinced 
of  the  prisoner's  guilt  beyond  a  reasonable  doubt.  They  are 
bound  by  their  oath  to  render  a  verdict  upon  all  the  evidence, 
and  the  law  makes  no  distinction  between  direct  evidence  of  a 
fact  and  evidence  of  circumstances  from  which  the  existence 
of  a  fact  may  be  inferred.2  Hence  a  prejudice  against  circum- 
stantial evidence  may  be  sufficient  to  disqualify  a  person  who 


point  in  the  one  direction  of  guilt,  and 
to  the  exclusion  of  any  other  hypoth- 
esis there  is  no  substantial  reason  for 
reluctance.  Purely  circumstantial  evi- 
dence may  be  often  more  satisfactory 
and  a  safer  form  of  evidence,  for  it 
must  rest  upon  facts  which  must  tend 
collectively  to  establish  the  guilt  of  the 
accused."  Gray,  J.,  in  People  v.  Har- 
ris, 136  N.Y.  423,  428,  33  N.  E.  Rep.  65. 
1  Carlton  v.  People,  150  111.  181, 187; 
State  v.  Atkinson,  40  S.  Car.  365 ;  Peo- 
ple v.  Cronin,  34  Cal.  191,  202;  People 
«.Daniels(Cal.,1893),34Pac.Rep.233; 
State  v.  Hunter,  50  Kan.  302,  304;  32 
Pac.  Rep.  37;  State  v.  Avery,  113  Mo. 
475,  495 ;  State  v.  Slingerland,  19  Nev. 
135,  141;  State  v.  Elsham,  70  Iowa 
531,  31  N.  W.  R.  66;  State  v.  Moel- 
chen,  53  Iowa  310;  Epps  v.  State,  102 
Ind.  539,  554. 


2  "A  fact  has  the  sense  of  and  is 
equivalent  to  a  truth  or  that  which  is 
real.  It  is  in  the  ingenious  combina- 
tion of  facts  that  they  may  be  made 
to  deceive  or  to  express  what  is  not 
the  truth.  In  the  evidence  of  eye- 
witnesses to  prove  the  facts  of  an 
occurrence,  we  are  not  guaranteed 
against  mistake  and  falsehood,  or  the 
distortion  of  truth  by  exaggeration  or 
prejudice,  but  when  we  are  dealing 
with  a  number  of  established  facts, 
if,  upon  arranging,  examining  and 
weighing  them  in  our  mind,  we  reach 
only  the  conclusion  of  guilt,  the  judg- 
ment rests  upon  pillars  as  substantial 
and  as  sound  as  though  resting  upon 
the  testimony  of  eye-witnesses."  Gray, 
J.,  in  People  v.  Harris,  136  N.  Y.  423, 
429. 


§  6         CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.  9 

entertains  it  from  serving  as  a  member  of  the  jury.1  But  to 
sustain  a  verdict  founded  on  circumstances,  the  circumstances 
themselves  must  be  proved  to  the  satisfaction  of  the  jury.  The 
danger  that  the  jurors,  unused  to  logical  mental  processes,  may 
assume  as  proved  circumstances  in  support  of  which  the  evi- 
dence is  wholly  inadequate,  is  always  present.  It  has  been 
often  said  that  witnesses  may  lie,  but  circumstances  never  do. 
It  should  not  be  forgotten,  however,  that  the  circumstances 
from  which  guilt  may  be  inferred  must  be  proved  by  the  direct 
evidence  of  witnesses  who  saw  them,  and  that  such  witnesses 
may  misrepresent  or  forget,  or  be  mistaken. 

The  first  duty  of  the  jury  is  to  determine  carefully  upon  all 
the  testimony  as  stated  by  the  witnesses  whether  the  incrim- 
inating circumstances,  from  which  they  may  infer  guilt,  are 
proved,  beyond  a  reasonable  doubt.2  No  general  rule  can  or 
should  be  laid  down  as  to  what  constitutes  proof  in  any  par- 
ticular case.  Each  is  a  rule  unto  itself,  and  is  to  be  deter- 
mined upon  its  peculiar  circumstances.  But  all  the  circum- 
stances as  proved  must  be  consistent  with  each  other,  and, 
taken  together,  they  must  point  surely  and  unerringly  in  the 
direction  of  guilt.  All  the  facts  and  circumstances  as  proved 
mast  not  only  be  consistent  with  the  inference  that  the  ac- 
cused is  guilty,  but  they  must  at  the  same  time  be  inconsistent 
with  the  hypothesis  that  he  is  innocent  and  with  every  other 
rational  hypothesis.8 

1  State  v.  Leabo,  89  Mo.  247.  252,  1  S.  30  S.  W.  Rep.  1059 ;  State  v.  Avery,  113 
W.  Rep.  288;  Cluverius  v.  Com.,  81  Mo.  475,  495;  State  v.  Miller,  100  Mo 
Va.  787,  794,  795 ;  State  v.  West,  69  606, 626, 13  S.W.  Rep.  832,  1051 ;  Com 
Mo.  401.  v.  Goodwin,  14  Gray(Mass.)  55 ;  Chitis- 

2  Jenkins  v.  State,  62  Wis.  49.  ter  v.  State,  33  Tex.  Cr.  Rep.  635,  638 

3  State  v.  Johnson,  19  Iowa  230;  State  v.  Hunter,  50  Kan.  302,  306 
State  v.  Miller,  9  Houst.  (Del.)  564,  Kennedy  v.  State,  31  Fla.  428,  12  So 
571;  Echols  v.  State,  81  Ga.  696,  699;  Rep.  858;  State  v.  Davenport,  38  S 
Green  v.  State,  51  Ark.  189;  Findley  Car.  348,  352;  Carlton  v.  People,  150 
v.  State,  5  Blackf.  (Ind.)  576,  579;  111.  181;  Gannon  v.  People,  127  111 
James  v.  State,  45  Miss.  572,  575 ;  State  507,  521 ;  Com.  v.  Costley,  118  Mass.  1 
v.  Asbell,  57  Kan.  398,46Pac.  R.  770;  Coleman  v.  People,  26  Fla.  61,  71 
People  v.  Ward,  105  Cal.  335,  38  Pac.  Lancaster  v.  State,  91  Tenn.  267,  18  S 
Rep.  945 ;  State  v.  David,  131  Mo.  380 ;  W.  Rep.  777 ;  State  v.  Keeler,  28  Iowa 
Jones  v.  State,  34  Tex.  Crim.  Rep.  490,  551,  553;  People  v.  Foley,  64  Mich 


10 


CRIMINAL    EVIDENCE. 


§7 


Where  the  only  incriminating  evidence  before  the  jury  is 
circumstantial,  it  is  the  duty  of  the  court  to  instruct  upon  the 
rules  of  law  regulating  circumstantial  evidence.  But  if  there 
is  any  direct  evidence  tending  to  show  the  prisoner's  guilt,  or 
if  a  confession  made  by  him  has  been  proved,  such  an  instruc- 
tion is  unnecessary.1 

§  7.  Circumstantial  evidence  to  prove  corpus  delicti  in  trial 
for  homicide. — The  rule  seems  at  one  time  to  have  prevailed 
that  a  conviction  could  not  be  sustained,  at  least  so  far  as  a 
charge  of  homicide  was  concerned,  unless  the  corpus  delicti  was 
proved  by  direct  evidence,  which  in  such  case  necessitated  the 
finding  of  the  victim's  body.2  As  an  objection  of  considerable 
force  it  has  been  urged  that  this  rule  offers  a  premium  on  homi- 
cide by  proclaiming  to  assassins  that  they  will  be  safe  from  pun- 
ishment if  they  shall  succeed  in  utterly  destroying  the  corpses 


148,  31  N.  W.  Rep.  94 ;  Wright  v.  State, 
21  Neb.  496,  32  N.  W.  Rep.  576;  Peo- 
ple v.  Aiken,  66  Mich.  460;  Cavender 
v.  State,  126  Ind.  47,  48 ;  United  States 
v.  Reder,  69  Fed.  R.  965;  Hamilton  v. 
State,  96  Ga.  301,  22  S.  E.  Rep.  528; 
Smith  v.  State  (Tex.,  1896),  34  S.  W. 
Rep.  960;  Howard  v.  State,  108  Ala. 
571,  18  So.  Rep.  813;  Wantland  v. 
State,  145  Ind.  38,  43  N.  E.  Rep.  931 ; 
State  v.  Hart  (Iowa,  1896),  64  N.  W. 
Rep.  278;  Webb  v.  State,  73  Miss.  456, 
19  So.  Rep.  238;  Baldez  v.  State  (Tex., 
1896),  35  S.  W.  Rep.  664;  State  v. 
Moxley,  102  Mo.  374 ;  People  v.  Shuler, 
28  Cal.  490,  496;  Morgan  v.  State 
(Neb.,  1897),  71  N.  W.  Rep.  788. 

^ranadov.  State  (Tex.,  1896),  35  S. 
W.  Rep.  1069;  Ellis  v.  State,  33  Tex. 
Cr.  Rep.  86,  87,  24  S.  W.  Rep.  894; 
White  v.  State,  32  Tex.  Cr.  Rep.  625; 
State  v.  Robinson,  117  Mo.  649,  663; 
Langdon  v.  People,  133  111.  382,  408, 
24  N.  E.  Rep.  874;  Wampler  v.  State, 
28  Tex.  App.  352,  353;  State  v.  Don- 
nelly, 130  Mo.  642.  "Despite  the  fact 
that  inferences   drawn  from   circum- 


stances may  be  and  often  are  erroneous, 
circumstantial  evidence  may  be,  and 
in  many  cases  is,  as  conclusive  and 
convincing  as  the  direct  and  positive 
testimony  of  eye-witnesses.  Where  it 
is  strong  and  satisfactory  to  the  jurors 
it  is  their  duty  to  act  on  it.  They 
should  give  it  its  just  and  fair  weight, 
and  if  upon  a  candid,  careful  and 
guarded  judgment  of  all  the  circum- 
stances proved  they  are  convinced  of 
the  guilt  of  the  accused  it  is  their  duty 
to  convict  him.  They  may  not  go  out- 
side of  the  facts  and  circumstances 
proved  to  fancy  others  which  may 
point  to  his  innocence,  but  are  to  base 
the  verdict  upon  the  reasonable  infer- 
ences drawn  from  the  circumstances 
proven  that  reasonable  men  would  en- 
tertain. If  all  inferences  thus  made 
are  consistent  with  the  guilt  of  the 
prisoner  and  inconsistent  with  his  in- 
nocence, then  they  must  convict  him." 
State  v.  Elsham,  70  Iowa  531,  31  N. 
W.  Rep.  66. 

2  2  Hale  P.  C.  290 ;  Reg.  v.  Burdett, 
4  B.  &  Aid.  95. 


§  7         CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.        11 

of  their  victims  by  fire  or  chemicals,  or  by  sinking  them  to  a 
great  depth  in  the  ocean,  so  that  they  can  not  be  identified  by 
direct  evidence.1 

There  are  very  many  cases  which  do  not  require  such  direct2 
and  strict  proof  of  the  corpus  delicti,  but  allow  it  to  be  proved 
by  circumstantial  evidence  if  that  is  sufficiently  clear  and 
cogent  to  convince  the  jury  beyond  a  reasonable  doubt  in  con- 
nection with  the  other  evidence,'  as,  for  example,  where  the 
body  of  a  person  murdered  had  been  thrown  overboard,4  or 
wholly  or  partly  consumed  by  fire,5  or  by  decay.6  Such  cases 
may,  however,  be  regarded  as  exceptions  based  on  peculiar 
circumstances  than  as  establishing  a  general  rule  applicable  to 
cases  where  direct  evidence  could  with  reason  be  required. 

A  broader,  more  accurate  and  more  inclusive  statement  of 
the  general  rule  would  be  that  the  corpus  delicti  of  homicide 
must  be  proved  either  by  showing  that  the  party  alleged  to 
have  been  killed  is  actually  dead  by  finding  and  identifying 
his  corpse,  or  by  showing  that  the  murder  was  accomplished 
or  accompanied  by  the  employment  of  violence  in  such  a  man- 
ner as  to  sufficiently  account  for  the  disappearance  of  the  body 
and  render  direct  evidence  of  its  whereabouts  or  appearance 
impossible  to  be  obtained.7  In  homicide  the  identification  of 
the  body,  if  it  is  found  intact,  is  always  required.    The  disap- 

1  United  States  v.  Gibert,  2  Sumn.  v.  Keeler,  28  Iowa  551,  553;  Anderson 
(U.  S.)  19,  27;  State  v.  Williams,  7  v.  State,  20  Fla.  381;  State  v.  David- 
Jones  (N.  Car.)  446,454;  post,  §338a.  son,  30  Vt.  377;   State  v.  William,  7 

2  A    statute   which    requires   direct  Jones  (N.  C.)  446,  453. 

proof  of  the  death  of  a  person  alleged  *  United  States  v.  Williams,  1  Cliff, 

to  have  been  killed  does  not  exclude  5,  21. 

evidence  of  circumstances  indicating  5  People  v.  Alviso,  55  Cal.230;  State 

identity,  People  v.  Palmer,  109  N.  Y.  v.  Williams,  7  Jones  (N.  C.)  446,  453. 

110,  or  evidence  of    resemblance  of  6  McCulloch  v.  State,  48  Ind.  109. 

features   between  a    mutilated  body  7  Smith  v.  Commonwealth,  21  Gratt. 

which    was    found    and    the    person  (Va.)  809,  820;  Pitts  v.  State,  43  Miss. 

alleged  to  have  been  killed.     People  472,  481;  State  v.  Keeler,  28  Iowa  551, 

v.  Beckwith,  108  N.  Y.  67.  553;  Lancaster  v.  State,  91  Tenn.  267, 

8Zoldoskev.  State,  82  Wis.  580;  52  18  S.  W.  R.  777;  Ruloff  v.  People,  18 

N.  W.  R.  778;  Rex  v.  Burdett,  4  B.  &  N.  Y.  179;  State  v.  Winner,  17  Kan. 

A.  95;  Lightfoottf.  State,  20Tex.  App.  298;  State  v.   Dickson,   78  Mo.    438; 

77-100;  Johnsons.  Com.,  81  Ky.  325;  State  v.   Davidson,    30  Vt.  377,   386. 

State  v.  Dineen,  10  Minn.  407;  State  See,  also,  post,  §  338a. 


12  CRIMINAL    EVIDENCE.  §  8 

pearance  of  the  person  supposed  to  have  been  killed,  with  cir- 
cumstantial evidence  of  guilt,  will  not  sustain  a  conviction 
where  a  body  found  is  not  identified.1 

§  8.  Destinction  between  civil  and  criminal  proceedings  as 
regards  relevancy  and  manner  of  proof. — It  has  been  repeatedly 
remarked,  both  by  the  writers  of  text-books  and  in  the  adjudi- 
cations, that  ''there  is  no  difference  in  the  rules  of  evidence 
between  civil  and  criminal  cases  ;  what  may  be  received  in 
the  one  may  be  received  in  the  other  ;  what  is  rejected  in  the 
one  will  be  rejected  in  the  other."1  And  such  a  rule  would 
seem  to  be  not  only  just  and  logical,  but  necessary  when  we 
consider  that  the  sole  object  of  evidence  is  the  ascertainment  of 
truth;  in  other  words,  that  every  species  of  evidence  is  merely  a 
means  towards  an  end,  and  that  end  the  establishment  or  dis- 
covery of  facts  unknown  or  disputed.  However  universal 
such  a  principle  of  uniformity  may  have  been  in  the  early  and 
formative  period  of  the  common  law,  it  has  long  since  ceased 
to  be  so.  The  present  tendency  is  to  widen  the  margin  or 
borderland  which  lies  between  the  domains  of  civil  and  crimi- 
nal jurisprudence  so  that  criminal  evidence  differs  from  civil 
evidence,  not  merely  in  the  facts  or  matters  to  which  it  is  to 
be  applied,  but  in  the  manner  in  which  it  may  be  employed 
and  the  facts  which  may  be  introduced. 

Thus  it  is  true  that  in  general  the  rules  which  regulate  most 
of  the  various  subdivisions  into  which  the  subject  of  evidence 
is  divided,  with  the  exception  of  the  weight  of  evidence,  and 
the  presumption  of  the  innocence  of  the  accused,  are  identical 
in  both  civil  and  criminal  proceedings.  But  there  are  excep- 
tions to  these  rules  which  must  be  considered.  No  general 
rule  has  ever  been  discovered  by  which  it  is  possible  to  deter- 
mine in  every  case  whether  any  given  fact  is  relevant  or  not. 

1  Walker  v.  State,  14  Tex.  App.  609.  weight  and  stature  of  a  person  are  al- 

Evidence  of  scars,  moles,  congenital  ways  admissible  to  identify   a  dead 

marks  or  those  artificially  made,  as  body.    Linsday  v.  People,  63  N.  Y.  143. 

by  tattooing,  the  color  of  the  hair  and  2  Rex  v.  Watson,  2  Stark.  N.  P.  C. 

beard,  the  condition,  number  of  and  110,  155. 
marks  on  the  teeth,  the  measurement, 


§  9         CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.        13 

Usually  one  fact  is  relevant  to  prove  another  when,  by  itself 
or  in  combination  with  other  relevant  facts,  it  proves  or 
renders  probable  the  existence  of  the  other.  The  rules  as  to 
the  relevancy  of  facts  and  as  to  the  proof  of  relevant  facts  are 
generally  the  same  in  criminal  as  in  civil  proceedings.  If  it 
is  essential  to  prove  that  A  is  dead  the  fact  may  be  proved  in 
the  same  way  in  a  criminal  trial  for  his  homicide  as  in  an  ac- 
tion to  recover  for  an  insurance  on  his  life.  But  some  facts  are 
relevant  in  criminal  proceedings  to  prove  facts  which  would 
not  be  received  in  a  civil  trial  where  the  same  fact  was  in 
issue.  For  example,  the  fact  that  the  accused  is  reputed 
among  his  neighbors  to  be  honest  may  be  proved  in  a  criminal 
trial  for  theft,  not  only  to  reinforce  the  presumption  of  inno- 
cence, but  as  affirmative  evidence  to  prove  that  he  did  not  steal, 
while  the  state  may  prove  his  bad  character  for  dishonesty  to 
show  that  it  is  extremely  probable  that  he  is  a  thief. 

It  need  hardly  be  said  that  if  the  fact  of  larceny  by  the  de- 
fendant is  in  issue  in  a  civil  proceeding,  his  character  as  an 
honest  man  or  the  reverse  is  not  admissible.  So,  too,  there  are 
several  rules  of  evidence  which  are  applicable  exclusively  to 
criminal  proceedings. 

The  first  and  most  important  of  these  exclusively  criminal 
rules  is  that  under  which  every  person  charged  with  crime  is 
presumed  to  be  innocent  until  his  guilt  is  determined  by  the 
verdict  of  a  jury.  Growing  out  of  it,  and  always  connected 
with  it,  is  the  rule  fixing  the  amount  of  evidence  necessary  in 
criminal  trials,  and  requiring  that  all  the  jurors  shall  be  con- 
vinced of  the  guilt  of  the  accused  beyond  a  reasonable  doubt. 
Other  rules,  peculiar  to  criminal  cases,  admit  confessions  and 
dying  declarations,  contrary  to  the  general  principle  under 
which,  in  modern  times,  hearsay  evidence  is  uniformly  re- 
jected. 

§  9.  The  weight  of  evidence — Rules  in  civil  and  criminal 
cases  distinguished — Reasonable  doubt. — In  cases  where  civil 
rights  alone  are  involved  extreme  strictness  of  proof,  as  regards 
the  weight  of  the  evidence,  is  never  required.     The  jury  may 


14  CRIMINAL    EVIDENCE.  §  10 

decide  for  either  party  according  to  the  probability  and  the 
weight  of  the  evidence,  its  cogency  and  the  amount  of  credibil- 
ity they  may  attach  to  it.  The  verdict  will  be  sustained,  it 
matters  not  how  contradictor}''  the  evidence  may  be,  so  long  as 
it  is  in  favor  of  that  litigant  upon  whose  side  the  facts  proved 
preponderate. 

In  criminal  cases  the  jury  are  not  permitted  to  render  a  ver- 
dict of  guilty  upon  a  mere  preponderance  of  proof,  but  are  re- 
quired, particularly  where  the  evidence  is  circumstantial,  or 
contradictory,  to  be  satisfied  or  convinced  upon  all  the  evi- 
dence beyond  a  reasonable  doubt  that  the  accused  is  guilty.1 
The  rule  that  a  preponderance  of  evidence  is  sufficient  to  sus- 
tain a  verdict  in  a  civil  suit  is  due  partly  to  the  fact  that 
before  any  evidence  is  offered  in  behalf  of  either  litigant,  no 
presumption  is  indulged  in  favor  of  either,  but  mainly  to  the 
fact  that  the  proof  will  only  result  in  a  judgment  for  pecuniary 
damages,  or  establish  a  civil  right. 

In  a  criminal  trial  the  accused  starts  with  a  legal  presump- 
tion that  he  is  innocent  of  the  crime  charged,  which  must  be 
overcome,  in  addition  to  any  evidence  which  he  shall  intro- 
duce in  his  own  behalf.  So  the  reputation,  the  future  liveli- 
hood, and  career,  and,  perhaps,  even  the  life  of  the  accused  are 
involved,  while  in  civil  cases  any  loss  the  party  may  sustain, 
however  great,  may  usually  be  retrieved  by  his  future  efforts. 

§  10.  Difficulty  of  defining  reasonable  dorabt. — The  meaning 
of  the  term  "  reasonable  doubt  "  has  been  the  subject  of  a  vast 
amount  of  discussion,  and  innumerable  attempts  have  been 
made  to  define  it.  What  a  reasonable  doubt  is,  does  not  seem 
easy  of  explanation.  The  most  learned  jurists,  who  possessed 
unusual  facility  in  the  use  of  language,  have  found  it  difficult 
to  formulate  or  convey  to  their  own  satisfaction  the  idea  ex- 
pressed by  these  words.  For  the  difficulty  is  not  so  much  in 
understanding  the  meaning  of  the  words  as  in  conveying  their 
meaning  to  others.2  Many  of  the  cases  point  out  the  terseness 
and  seeming  simplicity  of  the  phrase  and  the  inutility  of  at- 

1  See  §§  11-15.  2  State  v.  Heed,  62  Me.  129,  142. 


§  11       CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.        15 

tempting  a  definition  which  must  necessarily  consist  in  a  re- 
statement of  the  proposition  in  a  different  form  of  words,  which 
are  not  any  more  easily  understood,1  but  which  render  the 
original  expression  more  obscure  and  tend  to  create  doubts  and 
confusion  rather  than  to  remove  them. 

§11.  Demonstration  and  belief  beyond  a  reasonable  doubt 
distinguished. — In  the  whole  domain  of  knowledge,  mathemat- 
ical facts  alone  are  capable  of  that  precise  and  logical  demon- 
stration which  absolutely  convinces  the  mind  and  leaves  no 
room  for  any  doubt  whatever.  So  when  one  has  solved  a  given 
problem  in  geometry  and  has  demonstrated  the  correctness  of 
his  solution  by  applying  to  it  the  rules  of  that  science,  and  the 
knowledge  which  he  already  possesses,  the  certainty  of  the 
facts  involved  lias  been  demonstrated  by  a  chain  of  facts  and 
argument  which  must  completely  convince  the  mind  of  every 
sane  man.  Such  a  demonstration  not  only  convinces  the 
mind  of  the  truth  of  a  proposition  or  hypothesis,  but  abso- 
lutely excludes  the  possibility  that  a  contradictory  or  incon- 
sistent proposition  is  true. 

But  with  inductive  or  inferential  facts  a  very  different  prin- 
ciple obtains.  It  is  absolutely  impossible  as  regards  our 
knowledge  of  human  affairs  derived  from  the  testimony  of  wit- 
nesses to  have  this  sort  of  demonstrative  certainty.  Such  facts 
can  not  be  scientifically  demonstrated  to  be  true.  We  can  be 
convinced  only  beyond  a  reasonable  doubt,  or,  in  other  words, 
we  can  have  only  a  moral  certainty,2  varying  in  degree  and 
never  absolute.    Whether  we  shall  have  any  certainty  at  all  as 

1 "  Language  that  is  within  the  com-  reasonable  doubt."   People  v.  Stuben- 

prehension  of  persons  of  ordinary  in-  voll,  62  Mich.  329,  334,  28  N.  W.  Rep. 

telligence  can  seldom  be  made  plainer  883,  and  see  also,  Hamilton  v.  People, 

by  further  definition  or  refining.     All  29  Mich.  173,  194, 195 ;  State  v.  Reed,  62 

persons  who  possess  the  qualifications  Me.    129,  142,  145 ;    Miles   v.    United 

of  jurors  know  that  a  doubt  is  a  flue-  States,  103  U.  S.  304;  State  v.  James, 

tuation  or  uncertainty  of  mind  arising  37  Conn.  355,  360;   United   States  v. 

from  defect  of  knowledge',  or  of  evi-  Harper,  33  Fed.  Rep.  471,  483. 
dence,  and  that  a  doubt  of  the  guilt  of        2  Jones  v.  State,  100  Ala.  88,  14  So. 

the  accused,  honestly  entertained,  is  a  Rep.  772. 


16  CRIMINAL    EVIDENCE  §  12 

the  result  of  our  consideration   of  the  evidence  depends  upon 
various  and  complicated  circumstances.1 

Thus  if  the  facts  attested  are  in  themselves  probable,  if  the 
witnesses  called  to  prove  them  are  of  good  repute  and  appar- 
ently credible,  their  opportunities  and  capacity  for  observation 
good  and  their  evidence  consistent  or  uncontradicted,  we  would 
have  a  very  high  degree  of  certainty  and  any  doubt  would  be 
unreasonable  and  not  justified  by  the  circumstances.  As  the 
above  elements  of  belief  disappear  or  become  inoperative  and 
the  evidence  becomes  contradictory  or  unconvincing,  the  pres- 
ence of  doubts  becomes  manifest.  If  one  is  reasonably  certain, 
and,  a  fortiori,  if  he  is  absolutely  certain  of  the  existence  of  a 
fact,  he  can  not  be  reasonably  doubtful,  that  is,  have  a  reasona- 
ble doubt.  Where  the  evidence  in  support  of  a  fact  is  equally 
balanced  by  other  evidence  there  can  be  no  certainty.  We  say 
then  that  there  is  a  reasonable  doubt  of  the  existence  of  the 
fact,  and  if  the  fact  is  the  guilt  of  an  accused  person  he  is  en- 
titled to  the  benefit  of  the  doubt. 

§  12.  Attempted  definitions  of  reasonable  doubt. — The  doubt 
to  be  reasonable  must  have  something  to  rest  upon.  It  must 
be  a  substantial  doubt  arising  upon  the  evidence  or  from  a  lack 
of  evidence,  such  as  an  honest,  sensible  and  fair-minded  man 
might,  with  reason,  entertain  consistent  with  a  conscientious 
desire  on  his  part  to  ascertain  the  truth. 

A  vague  conjecture  or  an  inference  of  the  possibility  of  the 
innocence  of  the  accused  is  not  a  reasonable  doubt.  A  doubt 
is  not  reasonable  that,  in  the  face  of  overwhelming  or  even 
strong  evidence,  assumes  that  the  accused  may  possibly  be  in- 
nocent. There  must  be  sincerity  and  common  sense  in  the 
doubt,  for  the  mental  operations  of  all  sane  men  are  governed 
by  the  same  rules,  whether  in  the  jury  box  or  out  of  it ;  and 
the  jurors  should  be  convinced  as  jurors  by  the  same  proof 
that  would  convince  them  as  men,  and  upon  which  they  would 
act  in  the  management  of  the  gravest  and  most  important  mat- 
ters and  in  arranging  their  most  serious  affairs  and  concerns.2 

^ee  remarks  of  the  court  in  Giles  2  State  v.  Gleim,  17  Mont.  17;  Law- 
v.  State,  6  Ga.  276,  285.  head  v.  State,  46  Neb.  607,  65  N.  W. 


§  12       CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.        17 


On  the  other  hand  they  should  doubt  as  jurors  what  they  would 
doubt  as  men.1  If  they  have  an  abiding  and  conscientious 
conviction  of  the  prisoner's  guilt,  then  they  are  convinced  be- 
yond a  reasonable  doubt.2 

A  reasonable  doubt  has  also  been  denned  as  "a  doubt  for 
which  a  reason  can  be  given,"3  as  a  doubt  which  must  satisfy  a 
reasonable  mind,  after  a  full  comparison  and  consideration  of 
the  evidence,4  as  a  doubt  that  has  something  to  rest  upon  such 
as  a  sensible  and  honest  man  would  reasonably  entertain,"5  as 
a  doubt  growing  out  of  the  evidence  and  the  circumstances  of 
the  case,6  having  a  foundation  in  reason,7  a  substantial  doubt 
arising  from  insufficiency  of  evidence,  not  a  mere  possibility,8 
or  probability  of  innocence,9  and  as  an  honest,  substantial  mis- 
giving generated  by  an  insufficiency  of  proof.10     But  negative 


Rep.  779;  People  v.  Hughes,  32  N.  E. 
Rep.  1105,  137  N.  Y.  29;  People  v. 
Wayman,  128  N.  Y.  585,  27  N.  E.  Rep. 
1027;  Miles  v.  United  States,  103 
U.  S.  304 ;  Giles  v.  State,  6  Ga.  276, 
285  ;  Arnold  v.  State,  23  Ind.  170 ;  State 
v.  Dineen,  10  Minn.  407,  417;  State  v. 
Pierce,  65  Iowa  85,  89;  McGuire  v. 
People,  44  Mich.  286 ;  State  v.  Bridges, 
29  Kan.  138 ;  State  v.  Kearley,  26  Kan. 
77,  87;  Stout  v.  State,  90  Ind.  1,  12; 
Toops  v.  State,  92  Ind.  13, 16. 

1  United  States  v.  Heath,  19  Wash. 
Law  R.  818 ;  Spies  v.  People,  122  111. 
1 ;  State  v.  Rounds,  76  Me.  123 ;  Fan- 
ton  v.  State  (Neb.,  1897),  69  N.  W. 
Rep.  953. 

2  But  see,  "Williams  v.  State,  73  Miss. 
820,  19  So.  Rep.  826. 

3  Hodge  v.  State,  97  Ala.  37,  41,  12 
So.  Rep.  164 ;  Cohen  v.  State,  50  Ala. 
108,  112;  People  v.  Guidici,  100  N.  Y. 
503,  3  N.  E.  Rep.  493.  But  it  has  also 
been  said  that  the  jurors  need  not  be 
able  to  give  a  reason  for  their  doubt. 
See  People  v.  McCann,  16  N.  Y.  58; 
Siberry  v.  State,  133  Ind.  677,  688 ;  Peo- 
ple v.  Ah  Sing,  51  Cal.  372;  Densmore 
v.  State,  67  Ind.  306. 

2— Cr.  Ev. 


4'Wood  v.  State,  31  Fla.  221,  240; 
People  v.  Guidici,  100  N.  Y.  503,  3 
N.  E.  Rep.  493. 

5  Fletcher  v.  State,  90  Ga.  468,  17  S. 
E.  Rep.  100. 

6Malone  v.  State,  49  Ga.  210,  218; 
State  v.  Davidson,  44  Mo.  App.  513. 

7 Conrad  v.  State,  132  Ind.  254,  258, 
31  N.  E.  Rep.  805;  People  v.  Barker 
(N.  Y.,  1897),  47  N.  E.  R.  31. 

8  State  v.  Wells,  111  Mo.  533. 

9  Bain  v.  State,  74  Ala.  38;  State  v. 
David,  131  Mo.  380. 

"United  States  v.  Newton,  52  Fed. 
Rep.  275,  290;  Densmore  v.  State,  67 
Ind.  306;  Siberry  v.  State,  133  Ind. 
677,  688,  33  N.  E.  Rep.  681 ;  Lovett  v. 
State,  30  Fla.  142,  162 ;  Lyons  v.  Peo- 
ple, 137  111.  602,  618;  Carroll  v.  Peo- 
ple, 136  111.  456;  Woodruff  v.  State,  31 
Fla.  320,  12  So.  Rep.  653;  Peoples. 
Pallister,  138  N.  Y.  601;  Carpenters. 
State  (Ark.,  1896),  36  S.  W.  Rep.  900; 
Little  v.  People,  157  111.  153,  42  N.  E. 
Rep.  389;  State  v.  David,  131  Mo. 
380,  33  S.  W.  Rep.  28;  People  v.  Ross 
(Cal.,  1897),  46  Pac.  Rep.  1059 ;  State  v. 
Blue,  136  Mo.  41,  37  S.  W.  Rep.  796; 
Burney  v.  State  (Ga.,  1896),  25  S.  E. 
Rep.  911. 


18 


CRIMINAL    EVIDENCE. 


§12 


definitions  are  more  frequent  and  perhaps  safer  and  more  help- 
ful. Hence,  a  mere  whim,  or  a  groundless  surmise,1  a  vague 
conjecture,2  a  whimsical  or  vague  doubt,3  a  desire  for  more 
evidence  of  guilt,4  a  captious  doubt  or  misgiving,  suggested  by 
an  ingenious  counsel,  or  arising  from  a  merciful  disposition, 
or  kindly  feeling  towards  the  prisoner,  or  from  sympathy  for 
him  or  for  his  family,  is  not  a  reasonable  doubt.5 


1  Welsh  v.  State,  96  Ala.  92,  11  So. 
Rep.  450. 

2  Fletcher  v.  State,  90  Ga.  468,  470, 
17  S.  E.  Rep.  100. 

3  Com.  v.  Drum,  58  Pa.  St.  9;  State 
v.  Bodekee,  34  Iowa  520. 

♦Shepperd  v.  State,  94  Ala.  102,  10 
So.  Rep.  663. 

5 United  States  v.  Newton,  52  Fed. 
Rep.  275,  290.  In  State  v.  Talmage, 
107  Mo.  543,  551,  17  S.  W.  Rep.  990, 
the  court  said  in  charging  the  jury : 
"  If  you  have  a  reasonable  doubt  of 
the  defendant's  guilt  you  must  acquit 
him,  but  a  doubt,  to  authorize  an  ac- 
quittal, must  be  a  substantial  doubt, 
arising  from  the  insufficiency  of  evi- 
dence and  not  a  mere  possibility  of 
innocence,"  and  "a  reasonable  doubt 
is  that  state  of  the  case,  which,  after 
the  entire  comparison  and  considera- 
tion of  all  the  evidence,  leaves  the 
minds  of  the  jurors  in  that  condition 
that  they  can  not  say  that  they  feel 
an  abiding  conviction  to  a  moral  cer- 
tainty of  the  truth  of  the  charge."  So 
in  Cross  v.  State,  132  Ind.  65,  31  N.  E. 
Rep.  473,  the  subject  is  thus  discussed : 
"A  doubt  produced  by  undue  sensi- 
bility in  the  mind  of  the  juror,  in  view 
of  the  consequences  of  his  verdict,  is 
not  a  reasonable  doubt;  and  a  juror 
is  not  allowed  to  create  sources  or 
material  for  doubt  by  resorting  to 
trivial  or  fanciful  suppositions  and 
remote  conjectures  as  to  a  possible 
state  of  facts,  differing  from  that  es- 
tablished   by    the    evidence.      Your 


oath  imposes  on  you  no  obligation  to 
doubt  where  no  doubt  would  exist  if 
no  oath  had  been  administered.  When 
a  circumstance  is  of  doubtful  char- 
acter in  its  bearings,  you  are  to  give 
the  accused  the  benefit  of  the  doubt. 
If,  however,  all  the  facts  established 
necessarily  lead  the  mind  to  the  con- 
clusion that  the  defendant  is  guilty, 
though  there  be  a  bare  possibility, 
merely,  not  supported  by  some  good 
reason  therefor,  that  he  is  innocent, 
you  should  find  him  guilty.  A  juror's 
duty  to  the  state,  to  society,  and  to 
himself  is  equally  sacred  to  hold  for 
conviction  if  he  has  an  abiding  satis- 
faction of  defendant's  guilt;  and  if, 
after  deliberation,  no  juror  is  pos- 
sessed of  any  good  reason  to  doubt 
the  defendant's  guilt,  it  is  the  duty  of 
the  jury  to  convict." 

"The  court  instructs  the  jury  as  mat- 
ter of  law  that  in  considering  the  case 
the  jury  are  not  to  go  beyond  the  evi- 
dence to  hunt  up  doubts  nor  must  they 
entertain  such  doubts  as  are  merely 
chimerical  or  conjectural.  A  doubt,  to 
justify  an  acquittal  must  be  reasonable, 
and  arise  from  a  candid  and  impartial 
investigation  of  all  the  evidence  in  the 
case,  and  unless  it  is  such  that  were 
the  same  kind  of  doubt  interposed 
in  the  graver  transactions  of  life,  it 
would  cause  a  reasonable  and  prudent 
man  to  hesitate  and  pause,  it  is  insuf- 
ficient to  authorize  a  verdict  of  "  not 
guilty."  If,  after  considering  all  the 
evidence,   you  can  say  you  have  an 


§  13       CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.         19 


§  13.    Precaution  to  be  employed  in  defining  reasonable  doubt. 

— The  danger  of  confusing  the  minds  of  the  jurors  in  attempt- 
ing to  define  words  seemingly  so  plain  as  "  reasonable  doubt," 


abiding  conviction  of  the  truth  of  the 
charge,  you  are  satisfied  heyond  a 
reasonable  doubt."  Spies  v.  People,  122 
111.  1 , 8, 12  N.  E.  Rep.  865, 17  N.  E.  Rep. 
898.  See,  also,  Painter  v.  People,  147 
111.  444,  35  N.  E.  R.  64;  Carlton  v. 
People,  150  111.  181,  37  N.  E.  R.  244. 

In  State  v.  Reed,  62  Me.  129,  on  p. 
143,  the  court  says :  "  There  is  no  ex- 
act mathematical  test  by  which  we 
may  certainly  know  whether  a  doubt, 
entertained  in  any  case,  is  reasonable 
or  otherwise.  What  would  be  reason- 
able to  one  person  might  be  far  other- 
wise to  another.  Therefore,  no  cer- 
tain line,  as  upon  a  plan,  can  be 
drawn,  that  shall  be  recognized  by 
everyone  as  the  dividing  line  between 
the  mere  skeptical  doubt  and  that 
which  has  the  sanction  of  reason. 
Hence,  whatever  explanation  may  be 
given  of  the  phrase,  its  meaning  prac- 
tically must  depend  very  largely  upon 
the  character  of  the  mind  of  the  per- 
son acting.  Lexicographers  tell  us 
that  reasonable  is  that  which  is 
'agreeable  or  conformable  to  reason.' 
The  doubt,  therefore,  which  conforms 
to  the  reason  of  the  person  examining, 
is  to  him  a  reasonable  doubt.  If  it 
does  not  so  conform,  to  him  it  is  un- 
reasonable, and  will  not  be  enter- 
tained. We  must  assume  that  the 
jurors  are  reasonable  men,  and  as  such 
they  must  be  addressed.  When  told 
that,  in  order  to  convict,  the  proof 
must  remove  every  reasonable  doubt' 
of  guilt  from  their  minds,  whatever 
the  form  of  words  used,  if  any  heed  is 
given  to  the  instruction,  the  result 
must  be  that  each  individual  juror  will 
understand  it  and  act  according  to  the 
dictates  of  his  own  reason ;  and  if, 
tried  by  that  test,  the  doubt  is  reason- 


able, conviction  must  fall.  Otherwise 
it  would  follow." 

"A  reasonable  doubt  is  not  such  a 
doubt  as  any  man  may  start  by  ques- 
tioning for  the  sake  of  a  doubt,  nor  a 
doubt  surmised  without  foundation  in 
the  facts  or  testimony.  It  is  such  a 
doubt  only  as  a  fair,  reasonable  effort 
to  reach  a  conclusion  upon  the  evi- 
dence,usingthe  mind  in  the  same  man- 
ner as  in  other  matters  of  importance, 
prevents  the  jury  from  coming  to  a 
conclusion  in  which  their  minds  rest 
satisfied.  If  so  using  the  mind,  and 
considering  all  the  evidence  produced, 
it  leads  to  a  conclusion  which  satis- 
fies the  judgment  and  leaves  upon  the 
mind  a  settled  conviction  of  the  truth 
of  the  fact,  it  is  the  duty  of  the  jury 
so  to  declare  the  fact  by  their  verdict. 
It  is  possible  always  to  question  any 
conclusion  derived  from  testimony. 
Such  questioning  is  not  a  reasonable 
doubt,  but  the  circumstances,  if  the 
case  is  one  of  circumstantial  evidence, 
must  so  concur  that  no  well  estab- 
lished fact  or  circumstance  which  is 
capable  of  controlling  the  case  should 
go  counter  to  the  conclusions  sought 
to  be  reached  or  which  are  to  be 
reached.  If  all  the  circumstances 
concur  in  one  result,  it  is  for  the  jury 
to  say  whether  those  circumstances 
are  sufficient  to  establish  that  result, 
or  whether  there  is  a  failure  to  cover 
probabilities  of  the  case  so  as  to  make 
it  reasonably  certain  that  the  fact  has 
been  made  out."  Com.  v.  Costley,  118 
Mass.  1,  16. 

For  other  cases  in  which  reason- 
able doubt  has  been  defined,  see: 
State  v.  Kearley,  26  Kan.  77,  87; 
State  v.  Witt,  34  Kan.  488,  490 ;  State 
v.   Buckley,  40  Conn.  246;    Com.   v. 


20  CRIMINAL    EVIDENCE.  §  14 

has  prompted  some  judges  to  refuse  to  attempt  any  definition.1 
Any  explanation  which  may  be  given  is  apt  to  be  couched 
in  language  more  intricate  and  harder  to  be  understood  than 
the  original  phrase,  and  to  be  little  more  than  a  judicial  para- 
phrase of  the  original  expression.  By  such  subtle  and  scho- 
lastic definitions  as  have  been  given  in  many  of  the  cases  the 
minds  of  the  jurors,  unused  to  threading  such  devious  intel- 
lectual mazes,  have  been  confused  and  bewildered.  They  re- 
ceive the  erroneous  impression  that  after  entering  the  jury  box 
their  intellectual  processes  are  no  longer  to  be  regulated  by 
the  ordinary  rules  employed  by  them  in  their  every-day  affairs, 
but  by  some  new  system  whose  principles  they  must  receive 
from  the  lips  of  the  court.  In  other  words  they  receive  the 
impression  that  "the  verdict  is  not  to  be  the  result  of  the 
natural  impression  which  the  evidence  has  made  upon  their 
minds,  but  of  the  operation  of  some  artificial  and  altogether 
new  rules,  which  the  law  has  created  for  them  to  apply  in 
reaching  it."  2 

§  14.  Doctrine  of  reasonable  doubt  applicable  to  misdemean- 
ors as  well  as  to  felonies. — The  rule  now  under  consideration 
is  applicable  in  all  criminal  cases,  i.  e.,  in  misdemeanors  as 

Leonard,  140  Mass.  473,  480;  Parker  104;  State  v.  Rounds,  76  Maine  123, 

v.  State,  136  Ind.  284 ;  O'Neil  v.  State,  125 ;  McGuire  v.  People,  44  Mich.  286, 

48  Ga.  66 ;  McKleroy  v.  State,  77  Ala.  289 ;  People  v.  Finley,  38  Mich.  482, 

95 ;  People  v.  Johnson,  140  N.  Y.  350 ;  485 ;  Mixon  v.  State,  55  Miss.  525,  527. 

Com.  v.  Tuttle,   12  Cush.   502,    505;  1 "  The  term  reasonable  doubt  is  al- 

Padfieldi>.  People,  146111. 660;  State  v.  most    incapable    of    any    definition 

Dineen,  10  Minn.  407,  417;  Hudelson  which    will   add   much  to   what  the 

v.  State,  94  Ind.  426,430;  Sullivan  v.  words  themselves  imply.     In  fact  it  is 

State,  52  Ind.  309,  311;  State  v.  Rod-  easier  to  state  what  it  is  not,  than  to 

rigo,  69  Cal.  601;   State   v.  Padillia,  state  what  it  is;  and  it  may  be  doubted 

42  Cal.  535;  State  v.  Vansant,  80  Mo.  whether  any  attempt  to  define  it  will 

67 ;  Dunn  v.  People,  109  111.  635 ;  State  not  be  more  likely  to  confuse  than  to 

v.   Pierce,   65  Iowa  85,   89 ;  State  v.  enlighten  a  juror.     A  man  is  the  best 

Hayden,  45  Iowa  11,  17;  Minich  v.  judge  of  his  own   feelings,   and    he 

People,  8  Colo.  440,454 ;  James  v.  State,  knows  for  himself  whether  he  doubts 

45  Miss.  572,  575;  Polin  v.  State,  14  better  than   anyone  can    tell  him." 

Neb.  540,  547;  State  v.  Oscar,  7  Jones  State  v.  Sauer,  38  Minn.  438,  439. 

(N.Car.)  305,  307 ;  Ray  v.  State,  50  Ala.  2  Thompson  on  Trials,  §2463. 


§  15       CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.        21 

well  as  felonies.1  But  it  should  be  noted  that  the  rule  does  not 
mean  that  the  jury  must  be  convinced  beyond  a  reasonable 
doubt  of  the  truth  of  every  proposition  of  fact  alleged  in  the 
case  against  the  accused.  The  rule  does  not  permit  one  or 
more  facts,  however  material  in  constituting  the  crime,  to  be 
selected  out  of  the  mass  of  facts  in  evidence  and  require  the 
jury  to  be  convinced  of  them  beyond  a  reasonable  doubt.  If, 
therefore,  the  court  has  instructed  the  jury  accurately  as  to  the 
true  rule  of  reasonable  doubt,  it  can  not  be  required  to  subdivide 
its  instruction  and  charge  separately  as  to  each  of  the  elements 
composing  the  crime.2  Hence  it  is  improper  to  charge  that,  as 
the  evidence  is  circumstantial,  it  is  necessary  to  establish  each 
necessary  link  in  the  chain  of  circumstances  beyond  a  reason- 
able doubt.3  It  is  enough  that  the  jury  is  told  that  they  must 
be  convinced  of  the  prisoner's  guilt  beyond  a  reasonable  doubt 
upon  all  the  evidence  taken  together.4 

§  15.    Reasonable  doubt  in  the  mind  of  one   juror. — The 

proposition  that  the  jury  must  be  convinced  of  the  guilt  of  the 
prisoner  beyond  a  reasonable  doubt  does  not  sustain  an  instruc- 
tion that  a  reasonable  doubt  must  be  entertained  by  or  arise  in 
the  mind  of  every  juror,5  and  that  an  acquittal  is  not  warranted 
unless  a  reasonable  doubt  is  entertained  by  all  of  them.6  On 
the  other  hand,  every  one  of  the  jurors  must  be  convinced  of 
the  prisoner's  guilt  in  order  that  his  conviction  should  be  sus- 
tained.   The  law  contemplates,  and,  indeed,  demands,  the  con- 

1  Vandeventer  v.  State,  38  Neb.  592 ;  Morgan  v.  State  (Neb.,  1897),  71  N.W. 
Stewart  v.  State,  44  Ind.  237;  Wasden  Rep.  788.  Contra,  Kaufman  v.  State, 
v.  State,  18  Ga.  264;  Com.  v.  Liquors,    49  Ind.  248,  251. 

115  Mass.  142,   145 ;    105   Mass.  595 ;  *  And  it  may  be  improper  to  instruct 

Fuller  v.  State,  12  Ohio  St.  433,  436;  them  that  the  law  does   not  require 

1  Bishop  Cr.  Pro.  1093.  each  link  of  the  chain  of  circumstances 

2  Walker  v.  People,  88  N.  Y.  81.  to    be   proved  beyond    a  reasonable 

3  Davis  v.  People,  114  111.  86;  Keat-  doubt,  the  figure  used  being  mislead- 
ing v.  People,  160  111.  480,  43  N.  E.  R.  ing  and  confusing.  Bressler  v.  Peo- 
724;  State  v.  Hayden,  45  Iowa  11,  17;  pie,  117  111.  422. 

Rudy  v.  Com.,  128  Pa.  St.  500,  508;  5  State  v.  Sloan,  55  Iowa  217,  220;  7 

Murphy  v.  State,  108  Ala.  10,  18  So.  N.  W.  Rep.  516. 

Rep.  557 ;  State  v.  Schoenwald,  31  Mo.  6  Stitz  v.  State,  104  Ind.  359,  362;  4 

147,  155;    Allen  v.  State,  60  Ala.  19;  N.  E.  Rep.  145. 


22  CRIMINAL    EVIDENCE.  §   16 

currence  of  twelve  minds  in  the  conclusion  that  the  accused  is 
guilty,  as  indicted,  before  he  can  be  convicted.1  Each  indi- 
vidual mind  has  to  arrive  at  this  conclusion  separately,  and 
each  juror,  having  in  view  the  oath  he  has  taken,  and  his  duty 
and  responsibility  thereunder,  should  have  his  own  mind  con- 
vinced beyond  a  reasonable  doubt  upon  all  the  evidence  before 
he  can  conscientiously  consent  to  a  verdict  of  guilty.2  But  the 
fact  that  one,  or  even  a  majority,  of  the  jurors,  are  not  con- 
vinced of  the  prisoner's  guilt  beyond  a  reasonable  doubt,  does 
not  necessarily  call  for  the  acquittal  of  the  prisoner,  and  the 
jury  should  be  so  instructed.3 

Under  such  circumstances  the  jury  should  report  that  an 
agreement  is  impossible.  Each  juror  must  act  on  his  own 
judgment  of  the  evidence,  and  while  he  may  be  aided  by  con- 
ferring with  his  fellow  jurors  in  reaching  the  truth,  he  is  not 
required  to  surrender  his  conviction  of  the  guilt  or  innocence 
of  the  prisoner,  or  his  reasonable  doubt  of  guilt,  remaining 
after  a  consideration  of  the  evidence  and  consultation  with  his 
associates,  merely  to  prevent  a  disagreement.4 

§  16.  Statutory  changes  in  rules  of  evidence  and  in  modes 
of  procedure. — Many  very  numerous  and  important  changes  in 
the  rules  of  evidence  established  at  the  common  law  have  been 
made  by  statute,  in  the  United  States  and  England.  The 
changes  and  modifications  have,  as  a  rule,  been  intended  to 

1  Jackson  v.  State,  91  Wis.  253,  64  sidered  all  the  evidence,  and  after 
N.  W.  Rep.  838.  having  consulted  with  his  fellow-jury- 

2  Castle  v.  State,  75  Ind.  146;  State  men,  entertains  such  reasonable  doubt, 
v.  Witt,  34  Kan.  488,  496;  State  v.  the  jury  can  not  in  such  case  find  the 
Sloan,  55  Iowa  217,  220 ;  State  v.  Stew-  defendant  guilty,  is  correct.  See  Clem 
art,  52  Iowa  284;  Rhodes  v.  State,  128  v.  State,  42  Ind.  420.  *  *  *  Each 
Ind.  189,  194;  Little  v.  People,  157  111.  juror  should  feel  the  responsibility 
153;  42  N.E.  Rep.  389.  resting  on  him  as  a  member  of  the 

3  Boyd  v.  State,  33  Fla.  316;  14  So.  body,  and  should  realize  that  his  own 
Rep.  836;  Davis  v.  State  (Neb.,  1897),  mind  must  be  convinced  beyond  a 
70  N.  W.  Rep.  984.  reasonable  doubt  before  he  can  con- 

4Statev.  Hamilton,  57  Iowa  596,  598,  sentto  a  verdict  of  guilty."     See,  also, 

11N.W.  Rep.  5;  State  v.  Witt,  34  Kan.  State  v.  Rogers,  56  Kan.  362,  43  Pac. 

488,496.    In  Castle  v.  State,  75  Ind.  Rep.  256;  State  v.  Taylor,  134  Mo.  109, 

146,  the  court  said :  "The  proposition  35  S.  W.  Rep.   92;  Allen  v.   United 

embodied  in  the  charge  asked,  that  if  States,  164  TJ.  S.  492,  17  S.  Ct.  154. 
any  one  of  the  jury,  after  having  con- 


§  1G      CIRCUMSTANTIAL  EVIDENCE  AND  REASONABLE  DOUBT.        23 

afford  the  accused  a  better  opportunity  to  clear  himself  of  the 
charge  against  him.  Thus,  for  example,  he  has  been  made  a 
competent  witness  in  his  own  behalf  contrary  to  the  rules  of 
the  common  law. 

.  Laws  which  prescribe  the  evidential  force  of  certain  facts 
by  enacting  that  upon  proof  of  such  facts  a  given  presumption 
shall  arise,  or  which  determine  what  facts  shall  constitute  a 
prima  facie  case  against  the  accused,  casting  the  burden  of 
proof  upon  him  of  disproving  or  rebutting  the  presumption, 
are  not  generally  regarded  as  unconstitutional,  even  though 
they  may  destroy  the  presumption  of  innocence.  An  accused 
person  has  no  vested  right  in  this  or  any  other  presumption, 
or  law  of  evidence,  or  procedure,  that  the  law-making  power 
can  not,  within  constitutional  limits,  deprive  him  of.1  The 
existing  rules  of  evidence  may  be  changed  at  any  time  by  legis- 
lative enactment.  But  the  legislative  power  must  be  exercised 
within  constitutional  limitations  so  that  no  constitutional  right 
or  privilege  of  the  accused  is  destroyed.  He  can  not  be 
deprived  of  a  fair  and  impartial  trial  by  a  jury  of  his  peers 
and  according  to  the  law  of  the  land.  But  the  constitutional 
prohibition  of  ex  post  facto  laws  is  not  applicable  to  statutes 
which  merely  alter  the  method  and  details  of  the  procedure  of 
a  criminal  trial,  even  though  the  statute  was  passed  after  the 
crime  was  committed.2  Thus,  a  statute  which  simply  enlarges 
the  class  of  persons  who  may  be  competent  to  testify  against 
the  accused  is  not  an  ex  post  facto  law  as  regards  crimes  previ- 
ously committed.3 

1  States.  Kyle,  14  Wash.  St.  702,  45        2  Stokes  v.   People,   53  N.  Y.   164, 
Pac.  Rep.  147 ;  Com.  v.  Smith,  166  Mass.    174. 

370,  44  N.  E.  Rep.  503;  State  v.  8Hopt  v.  Utah,  110  U.  S.  574,  589- 
Beach  (Ind.,  1896),  43  N.  E.  Rep.  949;  590.  See,  also,  25  Am.  Law  Reg.  680- 
In  re  Wong  Hane,  108  Cal.  680.  695,  and  Cf.  State  v.  Hoyt,  47  Conn. 

518,  532. 


CHAPTER  II. 


PRESUMPTIONS  AND  BURDEN  OF  PROOF. 


§17.  The  presumption  of  innocence     §21. 
— General  rule. 

18.  The  presumption  of  innocence        22. 

accompanies  the  accused  until 
a  verdict  is  rendered. 

19.  Presumption  of  chastity  of  fe-        23. 

male,  of  continuance  of  life, 

etc.,  conflicting  with  the  pre-        24. 

sumption  of  innocence. 

20.  Presumptions  from  infancy. 


Certain  facts  which  the  courts 
are  presumed  to  know. 

Burden  of  proof  and  presump- 
tion of  innocence  distin- 
guished. 

Burden  of  proof — General  rule 
casting  it  upon  prosecution. 

Burden  of  proving  a  negative 
— Facts  peculiarly  within 
knowledge  of  party  alleging 
them. 


§  17.    The  presumption  of  innocence — General  rule. — It  is  a 

cardinal  and  important  rule  of  the  law  of  evidence  that  the  de- 
fendant in  a  criminal  trial  must  always  be  presumed  innocent 
of  the  crime  for  which  he  is  indicted  until  his  guilt  is  proved 
beyond  a  reasonable  doubt.1  Nothing  need  be  proved  nor  is 
any  evidence  necessary  as  a  basis  for  this  presumption.  The 
imputation  of  innocence  to  the  accused  is  rather  a  legal  as- 
sumption of  the  fact  than  a  presumption.  The  doctrine  is 
based  upon  the  well  recognized  fact  which  the  courts  judicially 
notice  that  men  generally  obey  the  rules  of  the  criminal  law, 
and  upon  the  impossibility  of  obtaining,  and  the  consequent 
injustice  of  requiring,  affirmative  proof  from  the  accused  that 
he  has  done  so  in  this  particular  case.     This  presumption  is 

1  People  v.  Graney,  91  Mich.  646,  52  Castle  v.  State,  75  Ind.  146, 147;  Asz- 

N.  W.  Rep.  66;  Ogletree  v.  State,  28  man  v.  State,  123  Ind.  347,  361 ;  Farley 

Ala.  693 ;  United  States  v.  Heath,  20  v.  State,  127  Ind.  419,  421 ;  People  v. 

D.  C.  272;  People  v.  Pallister,  138  N.  Resh  (Mich.,  1896),  65  N.  W.  Rep. 

Y.  601,  605 ;  Gardner  v.  State,  55  N.  J.  99 ;  Williams  v.  State  (Tex.,  1896),  34 

L.  17,  652,  26  Atl.  Rep.  30:  Reid  v.  S.  W.   Rep.   943;  State  v.   Krug,    12 

State,  50  Ga.  556 ;  People  v.  Coughlin,  Wash.  288, 41  Pac.  Rep.  126.   See,  also, 

65   Mich.    704,  32   N.   W.  Rep.  905;  Underbill  on  Evid..  §§234,  346a. 

(24) 


§  18         PRESUMPTIONS  AND  BURDEN  OF  PROOF.  25 

merely  stating  concisely  the  rule  that  any  party,  whether  the 
state  or  a  natural  person  desirous  of  redress  for  an  injury,  who 
seeks  the  aid  of  a  court  of  justice,  has  the  burden  of  proving 
the  existence  or  non-existence  of  the  facts  he  affirms  or  denies. 

The  presumption  of  innocence  is  always  rebuttable.  As  is 
elsewhere  explained,  the  evidence  which  will  conclusively 
rebut  this  presumption  must  be  sufficient  to  convince  the  jury 
upon  all  the  facts  beyond  a  reasonable  doubt  that  the  accused 
is  guilty  of  the  crime  charged  against  him.1 

The  state  need  not,  however,  prove  that  it  is  impossible  for 
the  crime  to  have  been  perpetrated  by  any  other  person  than 
the  accused,2  that  no  one  else  had  an  opportunity  to  commit  it 
or  that  it  might  not  possibly  have  been  the  act  of  some  one 
else.3 

§  18.  The  presumption  of  innocence  accompanies  the  accused 
until  a  verdict  is  rendered. — The  presumption  of  innocence 
does  not  cease  when  the  jury  retires.  It  accompanies  the  ac- 
cused through  the  trial  down  to  and  until  the  jury  reach  a 
verdict  of  guilty,4  and  it  is  their  duty  if  possible  to  reconcile 
the  evidence  with  this  presumption.5  It  is  reversible  error  for 
the  court  to  refuse  so  to  charge,6  or  to  refuse  a  request  for  a 
separate  instruction  upon  the  presumption  of  innocence,  though 
it  does  instruct  fully  and  correctly  upon  the  necessity  for 
proof  of  the  defendant's  guilt  beyond  a  reasonable  doubt.7 

If  the  court  instructs  the  jury  correctly  upon  the  presump- 
tion of  innocence,  and  the  doctrine  of  reasonable  doubt,  a  fur- 
ther instruction  that  the  state  must  show  facts  which  are  not 
only  consistent  with  the  guilt  of  the  accused,  but  inconsistent 

x§§  9-16,  and  p.  24,  n.  1,  ante.  6  State  v.  Gonce,  79  Mo.  600,  602; 

2  Com.  v.  Leach,  160  Mass.  542,36  People  v.  Potter,  89  Mich.  353,  354; 

N.  E.  Rep.  471,  472.  Reeves  v.  State,  29  Fla.  527,  10  So! 

8  Houser  v.  State,  58  Ga.  78,  81.  Rep.  901,  905. 

4  People  v.  Macard,  73  Mich.  15,  26;  7  People  v.  Van  Houter,  38  Hun 
State  y.  Krug,  12  Wash.  288,  41  Pac.  (N.  Y.)  168,  173;  Stokes  v.  People, 
Rep.  126;  People  v.  McNamara,  94  53  N.Y.  164,  183.  Contra,  People  v.  Os- 
Cal.  509,  515.  strander  (Mich.,  1896),  67  N.  W.  Rep. 

5  Castle  v.  State,  75  Ind.  146,  147;  1079;  State  v.  Heinze,  2  Mo.  App.  R. 
Aszman  v.  State,  123  Ind.  347,  361;  1314. 

Farley  v.  State,  127  Ind.  419,  421. 


26  CRIMINAL    EVIDENCE.  §  19 

with  any  other  rational  hypothesis,  may,  according  to  some  of 
the  cases,  he  properly  refused.1 

The  law  presumes  that  the  relations  existing  between  hus- 
band and  wife  are  amicable,  and  that  such  friendly  relations 
continue  during  the  existence  of  the  marital  connection,  un- 
less the  contrary  is  shown  affirmatively.  In  a  prosecution  for 
wife  murder,  where  the  incriminatory  evidence  is  wholly  cir- 
cumstantial, the  defendant  is  entitled  to  the  benefit  of  this  pre- 
sumption as  well  as  to  the  advantage  accruing  from  the 
presumption  of  innocence,  and  the  prosecution  must  rebut 
both.2 

§19.  Presumption  of  chastity  of  female,  of  continuance  of 
life,  etc.,  conflicting  with  the  presumption  of  innocence. — It 

often  happens  from  the  nature  of  the  crime  that  the  presump- 
tion that  the  accused  is  innocent  encounters  or  is  opposed  by 
a  presumption  of  innocence  invoked,  or  existing,  in  behalf  of 
some  other  person.  So,  in  prosecutions  for  seduction,  or  for 
slander  in  imputing  unchastity  to  a  female,  the  rebuttable  pre- 
sumption that  all  women  are  chaste  has  sometimes,  but  rarely, 
been  permitted  to  overcome  the  presumption  of  innocence.  In 
other  words,  the  state  has  been  absolved  from  proving  as  a  part 
of  its  case  the  female's  chastity.3  But  it. should  be  particularly 
noted  that  the  presumption  of  innocence,  though  popularly 
attributed  to  every  person,  so  that  it  is  said  "  that  every  person 
is  presumed  innocent  until  proved  guilty,"  is  restricted  in  its 
legal  sense  and  application  to  the  defendant  in  a  criminal  trial. 
It  is  to  be  used  as  a  weapon  of  defense  by  the  prisoner,  not  as 
a  means  of  assault4  upon  him  to  procure  his  conviction,  when 
proof  of  some  fact  necessary  to  show  his  guilt  is  lacking. 

2Reed  v.  State,  54  Ark.  621,  16  S.  State,  102  Ind.  425,427;  Andersons. 

W.  Rep.  819,  820,  821 ;  Williamson  v.  State,  104  Ind.  467,  473. 

State,  30  Tex.  App.  330,  17  S.  W.  Rep.  2  State  v.  Moxley,  102  Mo.  374,  392; 

722.  Cf.  contra,  Lancaster  v.  State,  91  14  S.  W.   Rep.  969,   State  v.  Leabo, 

Tenn.  267,  18  S.  W.  Rep.  777;  State  84  Mo.  168. 

v.  Moxley,  102  Mo.  374,  388,  14  S.  W.  3  See  Slocum  v.  People,  90  111.  274, 

Rep.  969;  People  v.   Cunningham,   6  280.     Contra,   State   v.   McDaniel,   84 

Park.  Cr.  Rep.  (N.  Y.)  398;  Turner  v.  N.  Car.  803,  806. 


West  v.  State,  1  Wis.  186,  201. 


§  20         PRESUMPTIONS  AND  BURDEN  OP  PROOF.  27 

So,  though  the  decisions  are  not  harmonious,  the  better  and 
more  reasonable  view  is  that  the  law  will  not  countenance  any 
presumption,  which  by  overcoming  the  presumption  of  inno- 
cence will  cast  the  burden  of  proving  his  innocence  upon  the 
defendant.  Hence,  where  presumptions  apparently  conflict 
the  law  will  recognize  the  presumption  of  innocence  alone  and 
will  impose  no  restriction  on  its  operation,  but  will  apply  it  to 
the  whole  scope  of  the  charge  against  the  accused  and  to  every 
fact  essential  to  the  crime.1 

A  man  is  presumed  to  be  alive  until  his  death  is  shown,2  or 
until  a  counter  presumption  of  his  death  arises  from  evidence 
that  he  has  been  absent  and  has  not  been  heard  from  for  a  con- 
siderable period,  by  those  who  would  naturally  have  heard 
from  him  if  he  were  alive.  But  the  presumption  of  the  con- 
tinuance of  life  must  give  way  before  that  of  innocence.3 

§  20.  Presumptions  from  infancy. — An  infant  under  the  age 
of  seven  years  is  conclusively  presumed  to  be  doli  incapax.* 
Between  that  age  and  the  age  of  fourteen  the  absence  of  crimi- 
nal intent  or  guilty  knowledge  will  be  presumed  ;  though  in 
this  case  the  presumption  is  rebuttable  by  proving  circum- 
stances from  which,  despite  his  youth,  malice  maybe  inferred. 
Hence,  if  the  jury  are  convinced  on  all  the  evidence  and  be- 
yond a  reasonable  doubt  that  the  infant  understood  the  nature 
and  consequences  of  his  act,  and  that  it  was  done  with  delib- 
eration and  legal  malice,  they  may  convict  him  of  a  capital 
crime  or  other  felony.5     The  evidence  which  will  rebut  this 

1  State  v.  McDaniel,  84  N.  Car.  803,  questioned,  as  against  the   presump- 

806;   McArthur  v.  State,  59  Ark.  431,  tion  of  innocence.     Persons  v.  State, 

27  S.  W.  Rep.  628 ;  Persons  v.  State,  90  90  Tenn.  291,  295. 

Tenn.  291,  295;  Zabriskie  v.  State,  43  2  Underbill  on  Evid.,  §233. 

N.  J.  L.  640;  Oliver  v.  Com.,  101  Pa.  'Cameron  v.  State,  14  Ala.  546;  Peo- 

St.  215,   218.     Cf.   contra,    Dunlop  v.  pie  v.   Feilen,   58   Cal.   218;    Reg.   v. 

United  States,  165  U.  S.  486,  17  S.  Ct.  Willshire,  L.  R.,  6  Q.  B.  D.  366. 

375;  State  v.  Shean,  32  Iowa  88;   Slo-  44  Bl.  Com.  22,  23;  1  Hale  P.  C.  27, 

cum  v.  People,  90  111.  274,  280 ;  Wilson  28 ;  People  v.  Townsend,  3  Hill  (N.Y.) 

v.  State,73  Ala.  527, 534,  and  post,  §  393.  479. 

There  is  no  presumption  against  death  5  Com.  v.  Mead,  10  Allen(Mass.)  396, 

by  suicide,  when  the  body  of  a  man  is  398;   State  v.   Learnard,   41   Vt.   585, 

found  whose  death  by  violence  is  not  589;  Godfrey  v.  State,  31   Ala.   323; 


28 


CRIMINAL    EVIDENCE. 


§21 


presumption  of  criminal  incapacity  in  the  case  of  a  child  be- 
tween the  ages  of  seven  and  fourteen  years  must  be  strong  and 
clear,  and  prove  his  capacity  to  commit  crime  beyond  all  rea- 
sonable doubt  ;'  though  direct  proof  of  malice  is  not  necessary.2 
All  presumptions  in  favor  of  infancy  cease  when  the  child  is 
older  than  fourteen,  for  above  that  age  he  will  be  presumed  to 
be  capable,  mentally  and  physically,  of  committing  any  crime.3 

§  21 .    Certain  facts  which  the  courts  are  presumed  to  know. 

— The  general  rules  regulating  and  indicating  those  facts 
which  the  courts  will  judicially  notice  are  equally  applicable  to 
the  process  of  proving  facts  in  both  civil  and  criminal  cases. 
These  rules  have  been  very  frequently  formulated  in  statutes 
which  should  be  consulted  in  order  to  ascertain  their  precise 
effect  and  operation.  Elsewhere  in  this  work  the  subject  of 
judicial  notice  will  be  found  referred  to  in  connection  with  the 
facts  of  which  no  proof  is  required.4 


State  v.  Goin,  9  Humph.  (Tenn.)  175, 
176,  177;  Willet  v.  Com.,  13  Bush. 
(Ky.)  230,  232 ;  People  v.  Randolph, 

2  Park.  Cr.  Rep.  (N.  Y.)  174. 

*4  Bl.  Com.  24;  State  v.  Tice,  90 
Mo.  112;  State  v.  Learnard,  41  Vt. 
585;  Angelo  v.  People,  96  111.  209,  212. 

2  What  evidence  will  be  required 
depends  wholly  upon  the  circum- 
stances of  each  case,  as  the  education 
and  intelligence  of  the  child,  his 
moral  character  and  training  and  the 
nature  of  the  crime,  its  attendant  cir- 
cumstances and  the  motives  which 
prompted  it. 

3 1  Hale  P.  C.  20;  Irby  v.  State,  32 
Ga.  496,  498 ;  State  v.  Goin,  9  Humph. 
(Tenn.)  175,  176;  McDaniel  v.  State, 
5  Tex.  App.  475;  People  v.  Kendall, 
25  Wend.  (N.  Y.)  399;  Rex  v.  Sutton, 

3  Adol.  &  E.  597 ;  Hill  v.  State,  63  Ga. 
578,  582.     See  §  403,  post. 

4  The  subject  of  judicial  notice  is 
treated  in  extenso  in  Chapter  XVIII 
Underhill  on  Evidence.  A  few  in- 
stances of  facts  which  have  been  ju- 


dicially noticed  in  criminal  cases  are 
here  given.  The  names  of  the  judges. 
Kennedy  v.  Com.,  78  Ky.  447,  454; 
and  the  terms  of  the  courts.  Kennedy 
v.  Com.,  78  Ky.  447,454;  Dorm  an  v. 
State,  56  Ind.454,456 ;  Rodgers  v.  State, 
50  Ala.  102,  103.  The  records  of  the 
court.  State  v.  Bowen,  16  Kan.  475, 
477.  The  power  of  municipal  corpo- 
rations to  elect  officials.  Gallagher  v. 
State,  10  Tex.  App.  469,  471.  That 
certain  well  known  liquors,  as  lager 
beer,  are  intoxicating,  and  that  there 
is  malt  in  it.  Briffitt  v.  State,  58  Wis. 
39,  41-45;  State  v.  Goyette,  11  R.  I. 
592;  Rau  v.  People,  63  N.  Y.  277; 
Waller  v.  State,  38  Ark.  656,  660. 
Great  public  and  historical  events. 
Williams  v.  State,  67  Ga.  260,  262. 
Facts  of  geography,  particularly  of 
territorial  subdivisions  established  by 
law.  State  v.  Thompson,  85  Maine 
189,  194;  State  v.  Wagner,  61  Maine 
178;  People  v.  Brooks,  101  Mich.  98, 
101;  Forehand  v.  State,  53  Ark.  46; 
People,  v.  Wood,  131  N.  Y.  617;  State 


§21 


PRESUMPTIONS    AND    BURDEN    OF    PROOF. 


29 


Where  the  number  of  grand  jurors  depends  upon  the  popu- 
lation of  the  county,  the  grand  jurors  and  the  court  will  take 
judicial  notice  of  the  census  in  determining  whether  the  grand 
jury  is  properly  constituted.1  The  courts  will  take  judicial 
notice  of  the  contents  of  the  journals  of  the  legislature  far 
enough  to  determine  whether  an  act  published  was  actually 
passed  and  is  constitutional.2 


v.  Dunwell,  3  R.  I.  127;  United  States 
v.  Beebe,  2  Dak.  292,  293;  State  v. 
Reader,  60  Iowa  527;  People  v.  Sup- 
piger,  103  111.  434.  The  court  will 
take  judicial  notice  of  the  boundaries 
of  the  state  and  of  the  county,  that  a 
designated  county  is  in  the  state,  and 
a  designated  town  in  the  county. 
State  v.  Burns,  48  Mo.  438;  State  v. 
Pennington,  124  Mo.  388,  391 ;  Com. 
v.  Desmond,  103  Mass.  445 ;  Com.  v. 
Wheeler,  162  Mass.  429,  431 ;  State  v. 
Dunwell,  3  R.  I.  127 ;  Vanderwerker 
v.  People,  5  Wend.  530 ;  Moye  v.  State, 
65  Ga.  754;  Huston  v.  People,  53  111. 
App.  501,  502;  People  v.  Etting,  99 
Cal.  577,  579;  State  v.  Farley,  87  Iowa 
22,  53  N.W.  Rep.  1089;  People  v.  Cur- 
ley,  99  Mich.  238,  58  N.  W.  Rep.  68. 
Crimes  committed  within  a  military 
post  or  fort  are  beyond  the  jurisdic- 
tion of  state  courts.  Lasher  v.  State, 
30  Tex.  App.  387,  17  S.  W.  Rep.  1064, 
1065;  Wills  v.  State,  3  Heisk.  (Tenn.) 
141,  148. 

As  regards  public  streets  and 
squares,  it  may  be  said  that  though  a 
court  may  take  judicial  notice  that  the 
public  place  is  located  in  a  city  or 
town  in  the  county,  it  is  not  compelled 
to  do.  The  safer  plan  is  to  prove  the 
location  of  the  street  or  square  in  the 
city  in  which  the  venue  is  laid. 
Dougherty  v.  People,  .118  111.  160; 
Evans  v.  State,  17  Fla.  192;  Com.  v. 
Ackland,  107  Mass.  211. 

1  State  v.  Braskamp,  87  Iowa  588, 
590,  591. 


2  McDonald  v.  State,  80  Wis.  407, 
411 ;  People  v.  Mayes,  113  Cal.  618,  45 
Pac.  Rep.  860. 

The  facts  which  the  courts  will 
notice  judicially,  and  which  therefore 
need  neither  be  alleged  in  the  indict- 
ment, nor  proved  at  the  trial,  may  be 
thus  concisely  summarized: 

The  true  signification  of  all  English 
words  and  phrases  and  of  all  legal  ex- 
pressions. 

The  statutory  and  common  law  and 
generally  whatever  is  established  by 
law. 

Public  and  private  official  acts  of 
the  legislative,  executive  and  judicial 
departments  of  the  state  and  of  the 
United  States. 

The  seals  of  all  the  courts  of  the 
state  and  of  the  United  States. 

The  accession  to  office  and  the  offi- 
cial signatures  and  seals  of  the  princi- 
pal officers  of  government  in  the  legis- 
lative, executive  and  judicial  depart- 
ments of  the  state  and  of  the  United 
States. 

The  existence,  title,  national  flag, 
and  seal  of  every  state  or  sovereign 
recognized  by  the  executive  power  of 
the  United  States. 

The  seals  of  courts  of  admiralty  and 
maritime  jurisdiction  and  of  notaries 
public. 

The  laws  of  nature,  the  measure  of 
time,  the  value  and  nature  of  the  cir- 
culating medium,  and  the  geographical 
divisions  and  the  facts  of  political 
history. 


30  CRIMINAL    EVIDENCE.  §   22 

§  22.  Burden  of  proof  and  presumption  of  innocence  dis- 
tinguished.— The  principle  that  the  accused  is  innocent  until 
the  jury  has  pronounced  him  guilty  upon  all  the  evidence,  and 
the  rule  that  regulates  the  burden  of  proof  must  be  clearly  dis- 
tinguished.  The  former  is  a  rule  of  substantive  law,  existing 
before  any  evidence  is  offered  and  accompanying  the  accused 
throughout  the  trial  down  to  the  moment  of  his  conviction. 
But  the  burden  of  proof,  designed  mainly  as  a  rule  of  proced- 
ure, confers  only  a  temporary  benefit  upon  him.  Under  the 
burden  of  proof  the  prosecution  is  compelled  in  the  first  in- 
stance to  make  out  a  prima  facie  case  proving  the  essential 
facts  embraced  in  the  criminal  transaction  alleged,  including 
the  intent.  If  this  is  done,  and  the  accused  offers  no  evidence, 
the  case  as  made  out  by  the  state  must  go  to  the  jury.  They 
are  to  consider  it,  but  only  in  connection  with  the  presump- 
tion of  innocence  to  which  the  accused  is  always  entitled, 
though  he  may  have  introduced  no  evidence  whatever.  In 
thus  complying  with  the  requirement  that  it  shall  sustain  the 
burden  of  proof,  the  state  must  produce  such  evidence  as  will 
overcome  the  presumption  of  innocence  and  convince  the  jury 
of  the  guilt  of  the  accused  beyond  a  reasonable  doubt.  After 
the  state  has  introduced  all  the  proof  which  it  regards  as  suf- 
ficient to  convict  the  prisoner,  he  may  meet  the  case  thus 
made  out  against  him  in  three  different  ways  :  First.  He 
may  plead  not  guilty  generally.  By  this  plea  he  puts  in  issue 
all  the  allegations  of  the  indictment.  He  denies  the  truth  of 
all  the  evidence  which  may  be  offered  against  him.  Second. 
He  may  deny  the  truth  of  some  particular  ingredient  in  the 
criminal  transaction,  as  shown  by  the  state,  as  when  he  pleads 
an  alibi,  or,  admitting  the  doing  of  the  act  charged,  denies  the 
presence  of  a  malicious  intent,  or  alleges  that  he  was  non 
compos  mentis  at  the  date  of  the  alleged  crime  and  is,  there- 
fore, not  responsible  for  what  he  did.  Third.  He  may  put  in 
a  defense  not  traversing  the  allegations  of  the  indictment,  but 
involving  some  matters  or  facts  which  are  entirely  separate, 
distinct  from,  and  independent  of  the  original  transaction  set 
forth  therein.    Thus,  for  example,  he  may  plead  that  the  court 


§23 


PRESUMPTIONS    AND    BURDEN    OF    PROOF. 


31 


has  no  jurisdiction  of  the  charge,  or  he  may  plead  that  he  had 
a  statutory  license  to  do  what  he  did,  or  he  may  claim  that  he 
has  been  already  tried  and  acquitted  or  convicted  of  the  same 
crime.  We  will  first  consider  a  case  where  the  accused  pleads 
not  guilty  merely  and  traverses  the  allegations  of  the  indict- 
ment. 

§  23.  Burden  of  proof — General  rule  casting  it  upon  prose- 
cution.— The  general  rule  stated  broadly,  as  laid  down  by  the 
cases,  is  that  the  burden  of  proof  and  the  obligation  to  con- 
vince the  jury  of  the  prisoner's  guilt  beyond  a  reasonable 
doubt  as  to  all  essential  facts,  including  the  criminal  intent, 
are  upon  the  prosecution  throughout  the  trial.  There  is  no 
shifting  of  the  burden  of  proof  during  the  trial.1 

This  rule  is  clearly  applicable  in  every  case  where  the  de- 
fendant by  pleading  "  not  guilty  "  alone,  and  without  quali- 
fication, stands  upon  a  negative  allegation,  and  does  not  rely 
upon  any  facts  which  are  separate  and  distinct  from,  or  inde- 


1  State  v.   Conway,  56  Kan.  682,  44 
Pac.  Eep.  627;  State  v.  Harvey,  131 
Mo.  339,  32  S.  W.  Rep.  1110;  State  v. 
Lowry,  42  W.  Va.  205,  24  S.  E.  Rep. 
561 ;  People  v.  Coughlin,  65  Mich.  704, 
705;   Maherv.  People,  10  Mich.  212; 
Walker  v.   People,  88  N.  Y.  81,  88; 
O'Connell  v.  People,  87  N.Y.  377,  380; 
Gravely  v.  State,  38  Neb.  871,  873,  57 
N.  W.  Rep.  751 ;  Holmes  v.  State,  100 
Ala.  80,  84,  14  So.  Rep.  864;  Jones  v 
State,  51  Ohio  St.  331,  38  N.  E.  Rep 
79 ;  State  v.  Hirsch,  45  Mo.  429,  431 
People  v.  Plath,  100  N.  Y.  590,  592 
People  v.  Curtis,  97  Mich.  489,  490 
People  v.  McWhorter,  93  Mich.  641 
643,  644 ;  Burger  v.  State,  34  Neb.  397 
400;   Bishop  v.  State,  62  Miss.   289 
Hansford  v.  State  (Miss.,  1891),  11  So 
Rep.  106;  Slade  v.  State,  29  Tex.  App 
381,  392,  393,  16  S.  W.  Rep.  253;  Peo- 
ple v.  Elliott,  80  Cal.  296.     "  In  eveiy 
criminal  case  the  burden  is  through- 
out upon  the  prosecution.     Whatever 


course  the  defense  deems  it  prudent 
to  take,  in  order  to  explain  suspicious 
circumstances  or  remove  doubts,  it  is 
incumbent  on  the  prosecution  to 
show,  under  all  the  circumstances,  as 
a  part  of  their  case,  unless  admitted 
or  shown  by  the  defense,  that  there  is 
no  innocent  theory  possible,  which 
will,  without  violation  of  reason,  ac- 
cord with  the  facts.  So,  in  a  case  of 
alleged  poisoning,  where  the  symp- 
toms and  appearances  during  the  last 
illness  become  controlling  in  deter- 
mining whether  death  was  from  poison 
or  disease,  the  charge  is  not  made  out 
unless  the  state  negative  everything 
but  poison  as  the  cause  of  death.  This 
it  can  do  only  by  showing  that  the 
combined  symptoms  and  the  abso- 
lutely certain  facts  with  which  they 
are  associated  are  inconsistent  with 
any  other  disease."  People  v.  Mill- 
ard, 53  Mich.  63.  See,  also,  Underhill 
onEvid.,  §247. 


32  CRIMINAL    EVIDENCE.  §  24 

pendent  of,  the  original  transaction  set  forth  in  the  indictment. 
By  such  a  plea  the  prisoner  restricts  himself  to  denying  and 
disproving  the  facts  involved  in  the  original  transaction  upon 
which  the  charge  is  based,  including,  of  course,  all  the  ac- 
companying circumstances.1 

The  defendant  is  entitled  to  the  benefit  of  the  presumption 
of  innocence  before  he  introduces  any  evidence.  Hence,  though 
he  offers  no  evidence,  the  court  has  no  legal  power  to  direct  a 
verdict,  but  the  prima  facie  case  against  him  must  be  sub- 
mitted to  the  jury.  They  must  take  into  consideration  the 
presumption  of  innocence,  and  should  not  convict  unless  the 
state  has  sustained  the  burden  of  proof.  But  when  the  de- 
fendant pleads  any  substantive,  distinct  and  independent  mat- 
ter as  a  defense,  which  upon  its  face  does  not  necessarily  con- 
stitute an  element  of  the  transaction  with  which  he  is  charged, 
it  has  been  said  that  the  burden  of  proving  such  defense  de- 
volves upon  him.2  The  accused  must  prove  the  independent 
exculpatory  facts  upon  which  he  relies,  and  in  this  respect  and 
to  this  extent,  it  is  correct  to  say  the  burden  lies  on  him. 
Notwithstanding  this,  if,  after  all  the  evidence  is  in,  it  is 
found  that  upon  the  whole  case  the  prosecution  has  not  sus- 
tained the  burden  of  proof  in  convincing  the  jury  of  the  pris- 
oner's guilt  beyond  a  reasonable  doubt,  he  should  be  acquitted. 

§  24.  Burden  of  proving  a  negative — Facts  peculiarly  with- 
in knowledge  of  party  alleging  them. — The  general  rule  is 
that  the  burden  of  proof  is  upon  him  who  maintains  the  af- 
firmative, for  the  reason  that  the  affirmative  is  the  most  sus- 
ceptible of  direct  proof.     Hence  the  prosecution  has  the  burden 

1  For  a  full  discussion  of  the  ques-  Cliff.  98, 117 ;  Stitt  v.  State,  91  Ala.  10,  8 
tion,  see  Com.  v.  McKie,  1  Gray  So. Rep.  669;  Day  v.  State,  21  Tex.  App. 
(Mass.)  61.  213;  Stokes  v.  People,  53  N.  Y.  164; 

2  State  v.  Rollins,  113  N.  Car.  722,  State  v.  Wingo,  66  Mo.  181,  183,  186; 
729,  734 ;  State  v.  Welsh,  29  So.  Car.  State  v.  Johnson,  91  Mo.  439,  443; 
4, 7 ;  Robertson  v.  Com.  (Va.,  1895),  22  Weaver  v.  State,  24  Ohio  St.  584,  588, 
S.  E.  Rep.  359,  362;  Myers  v.  Com.,  589;  People  v.  Rodrigo,  69  Gal.  601.; 
90  Va.  705,  706 ;  Cleveland  v.  State,  86  People  v.  Tarm  Poi,  86  Cal.  225 ;  Krie,' 
Ala.  1,10;  Com.u.Eddy,7  Gray  (Mass.)  v.  Com.,  5  Bush  (Ky.)  362;  Bergin  v. 
583,  584;  United  States  v.  Holmes,  1  State,  31  Ohio  St.  Ill,  115. 


§  24         PRESUMPTIONS  AND  BURDEN  OF  PROOF.  33 

of  proof  as  the  indictment  is  composed  of  allegations  of  an  af- 
firmative character. 

The  difficulty  lies  mainly  in  applying  the  rule.  That  it  is 
a  real  difficulty  no  one  will  hesitate  to  believe  who  has  strug- 
gled through  the  bewildering  jungle  of  contradictory  and  irrec- 
oncilable decisions  endeavoring  to  find  some  common  principle 
upon  which  they  could  be  harmonized  or  at  least  rendered 
more  intelligible.  The  main  source  of  the  confusion  which 
has  arisen  has  been  the  forgetfulness  of  the  fact  that  there  is 
no  conceivable  proposition  of  fact  affirmative  in  form  which 
does  not  blend  a  negative  with  it,  or  in  other  words  which  does 
not  imply  the  negation  or  denial  of  its  opposite.  Thus,  for 
example,  in  a  prosecution  for  rape  the  allegation  that  the  de- 
fendant violated  the  prosecutrix  by  force  or  fraud  involves  the 
negative  allegation  that  she  did  not  consent  to  the  intercourse. 

So  a  charge  of  larceny  necessitates  proof  that  the  owner  of 
the  property  stolen  did  not  consent  to  the  taking.  These  two 
allegations  are  inseparable,  and  for  the  state  to  prove  one  neces- 
sarily requires  that  it  shall  prove  the  other.  Hence  the  rule 
that  the  burden  of  proof  is  upon  the  prosecution  because  it  has 
made  affirmative  allegations  is  not  affected  by  the  existence  of 
the  implied  negatives  in  the  original  transaction.  The  prose- 
cution is  permitted  and  required  to  prove  these  negatives  as  a 
part  of  its  case,  and  can  not  shift  the  burden  of  proving  their 
affirmative  opposites  upon  the  accused.  And  in  criminal 
cases  the  presumption  of  innocence  which  attaches  to  the  ac- 
cused casts  the  burden  of  proving  the  guilt  of  the  accused 
upon  the  state  throughout.  Hence  if  the  non-existence  of 
some  fact,  or  the  non-performance  of  some  duty,  is  a  constitu- 
ent and  essential  element  in  the  crime  with  which  he  is 
charged,  the  burden  of  proving  this  negative  allegation  of  non- 
existence or  non-performance  is  upon  the  state.  Thus,  under 
an  indictment  for  selling  goods  not  produced  in  the  United 
States,  the  burden  is  on  the  state  to  show  that  the  goods  were 
foreign.1     But  if  a  fact  is  peculiarly  within  the  knowledge  of 

1  Com.  v.  Samuel,  2  Pick.  (Mass.)  103. 
3— Cr.  Ev. 


34 


CRIMINAL    EVIDENCE, 


§24 


the  accused,  as,  for  example,  his  own  age  when  he  pleads  non- 
age as  a  defense,1  or  the  fact  that  he  has  a  license  to  carry  on 
a  prohibited  business  or  to  do  a  forbidden  act,  the  burden  of 
proof  is  on  him  as  he  has  much  better  means  of  proving  the 
fact  alleged  than  the  prosecution  has  of  proving  the  contrary. 
The  matter  is  peculiarly  within  his  knowledge,  and  to  require 
the  state  to  prove  the  lack  of  a  license  is  to  require  proof  of  a 
negative  allegation.2 


1  Ellis  v.  State,  30  Tex.  App.  601,  18 
S.  W.  Rep.  139;  State  v.  Arnold,  13 
Ired.  (N.  C.)  L.  184,  187. 

2  Sharp  v.  State,  17  Ga.  290;  Gening 
v.  State,  1  McCord  (N.  Car.)  573,  574 
People  v.  Townsey,  5  Denio  (N.  Y.) 
70;    People  ».  Safford,  5  Denio  112 
Hodgmen    v.   People,   4    Denio  235 
Conyers  v.   State,  50  Ga.   103,    106 
Com.   v.  Thurlow,   24   Pick.   (Mass.) 
374,  381 ;  State  v.  Hirsch,  45  Mo.  429 
Com.  v.  Zelt,   138  Pa.   St.  615,  628 
State  v.  Woodward,  34  Me.  293,  295 
21  Atl.  7 ;  Farrall  v.  State,  32  Ala.  557 
State  v.  Wilson,  39  Mo.  App.  114,  115 
People  v.  Nyce,  34  Hun  (N.  Y.)  298 
300;  People  v.  Maxwell,  83  Hun  157 
State  v.  McGlynn,  34  N.  H.  422;  State 
v.  Simons,  17  N.  H.  83 ;  State  v.  Foster, 
23  N.  H.  348;  State  v.  Keggon,  55  N. 
H.  19,  20;  Wheat  v.  State,  6  Mo.  455, 
456;  State  v.  Crow,  53  Kan.  662,  663; 


State  v.  City  of  Camden,  48  N.  J.  L. 
89,  90.  Contra  by  statute,  Com.  v. 
Thurlow,  24  Pick.  374;  Com.  v.  Locke, 
114  Mass.  288,  294 ;  Mehan  v.  State,  7 
Wis.  565.  The  same  principle  is  ap- 
plicable where  several  exceptions  or 
qualifications  exist  by  statute,  and  the 
accused  alleges  he  is  under  one  of 
them.  Rex  «.  Turner,  5  Maule&Selw. 
206,  211,  213 ;  Hines  v.  State,  93  Ga. 
187,  189;  Com.  v.  Zelt,  138  Pa.  St.  615, 
21  Atl.  Rep.  7;  State  v.  Kriechbaum, 
81  Iowa  633,  47  N.  W.  Rep.  872 ;  State 
v.  Hill,  46  La.  An.  27 ;  Com.  v.  Samuel, 
2  Pick.  (Mass.)  103.  Thus,  for  ex- 
ample, a  parent  who  is  prosecuted  for 
failing  to  send  his  child  to  school  for 
the  period  prescribed  in  a  truancy 
statute,  has  the  burden  of  showing  he 
is  within  the  exception  of  the  statute. 
State  v.  McCaffrey  (Vt.  1897),  37  Atl. 
Rep.  234. 


CHAPTER  III. 

EVIDENCE  BEFORE  THE  GRAND  JURY. 

§  25.  Ex  parte  character  of  evidence  §  27.   The  accused  as  a  witness  before 

before  the  grand  jury.  the  grand  jury. 

26.   Legal  and  proper  evidence  only  28.   Sufficiency  of    evidence    befora 

receivable — Effect  of  basing  in-  the  grand  jury, 

dictment  on  incompetent  evi-  29.   Contempt  of  witnesses  before  the 

dence.  grand  jury. 

30.   The  indictment  is  not  evidence. 

§  25.     Ex  parte  character  of  evidence  before  the  grand  jury. 

— The  common  law  regarded  the  proceedings  of  grand  jurors 
as  absolutely  ex  parte  in  their  character.  This,  it  will  be  seen, 
must  of  necessity  be  the  case,  and  for  this  reason  the  accused 
is  not  entitled,  as  of  course,  to  appear  before  them  either  in 
person  or  by  counsel.1  It  is,  however,  discretionary  with  the 
court,  but  never  matter  of  right,  to  call  the  accused  before  the 
grand  jury  and,  perhaps,  to  permit  him  to  examine  the  wit- 
nesses against  him.  But  he  can  not  produce  such  witnesses 
before  the  grand  jury  nor  submit  evidence  in  his  own  behalf, 
even  with  the  permission  of  the  state's  attorney.2  This  rule, 
though  apparently  working  an  injustice  to  an  accused  person, 
is  actually  calculated  to  inure  to  his  benefit.  For,  if  he  were 
allowed  to  introduce  witnesses  in  his  own  behalf  and  the  grand 
jury  were  then  to  indict  him  on  all  the  evidence  and  after  ar- 
guments of  counsel,  an  indictment  would  partake  of  the  nature 
of  a  verdict  of  guilty.     It  would,  perhaps,  raise  such  bias  and 

JThe  grand  jury  are,  in  the  absence  his  trial.    Reg.  v.  Hodges,  8  C.  &  P. 

of  statute,  to  hear  evidence  in  support  195. 

of  the  charge  only.    Lung's  Case,  1        2  State  v.  Hamlin,  47  Conn.  95,  105; 

Conn.  428 ;  United  States  v.  Palmer,  2  United  States  v.  Blodgett,  35  Ga.  336, 

Cranch  C.  C.  11.  They  can  not  inquire  342;  United  States  v.  White,  2  Wash, 

into  the  insanity  of  the  accused.  That  C.  C.  29,  30;   United  States  v.  Edger- 

is  matter  of  defense  to  be  proved  in  ton  (D.  C.  1897),  80  Fed.  Rep.  374. 

(35) 


36  CRIMINAL    EVIDENCE.  §   26 

presumption  of  guilt  that  all  hope  and  expectation  of  imparti- 
ality in  the  traverse  jurors  would  be  at  an  end. 

The  seeming  harshness  of  a  rule  that  permits  a  perfectly  in- 
nocent and  honorable  man  to  be  branded  with  an  indictment 
on  ex  parte  testimony  that  is,  perhaps,  prompted  by  malice  or 
manufactured  for  the  occasion,  without  any  opportunity  of 
meeting  the  charge  in  its  inception,  has  caused  the  rule  to  be 
modified  in  some  jurisdictions.  It  is  provided  by  statute  that 
the  grand  jury,  though  not  always  bound  to  hear  exculpatory 
evidence,  ought,  as  a  matter  of  duty,  to  weigh  all  evidence  sub- 
mitted to  them,  and  when  'they  have  reason  to  believe  that 
they  can  procure  other  evidence  which  will  explain  away  the 
charge,  they  should  order  it  to  be  produced.1 

§  26.  Legal  and  proper  evidence  only  receivable — Effect  of 
basing  indictment  on  incompetent  evidence. — The  grand  jury 
is  bound  to  require  the  production  of  the  best  evidence  which 
the  case  permits.  The  witnesses  should  be  sworn  and  the 
prosecuting  attorney  should  never,  in  justice  and  fairness,  in- 
troduce evidence  which  he  knows,  or  has  good  reason  to  be- 
lieve, will  be  ruled  out  as  incompetent  at  the  trial.2  Many 
statutes  exist  expressly  providing  that  grand  juries  shall  re- 
ceive legal  evidence  only.  Sometimes  it  is  enacted  that  the 
best  evidence  must  be  produced.3 

Usually  the  witnesses  should  be  produced  and  sworn  before 
the  grand  jury.  But  depositions,  containing  the  evidence 
taken  at  the  preliminary  examination,  may  be  received  where 
the  accused  has  had  an  opportunity  to  cross-examine.4  As 
the  accused  has  no  right  to  cross-examine  witnesses  before  the 
grand  jury,  it  is  not  grounds  for  quashing  an  indictment  that 
it  was  based  solely  on  depositions.5     It  should  be  remembered, 

JN.  Y.  Code  Cr.   Pr.,   §§257,  671;  §919;  Minn.  St.  at  Large,  1873,  §108, 

Miller's  R.  C.  1880,  §  4276,  and  Thomp-  page  1036 ;  N.  Y.  Code  Cr.  Pro.,  §  256 ; 

son  &  Merriam  on  Juries,  §  640.  People  v.  Brickner,  8  N.  Y.  Cr.  Rep. 

2  People  v.  Sellick,  4  N.  Y.  Cr.  Rep.  217,  221. 
329,  334;  State  v.  Logan,  1  Nev.  509,        4N.  Y.  CodeCr.  Pro.,  §255;  Thomp- 

516.  son  and  Merriam  on  Juries,  §641. 

3Ky.   Cr.    Code,   §107;    Comp.   L.        5  People  v.  Stuart,  4  Cal.  218,  225. 
Nev.,  1873,  §1831;  Cal.  Penal  Code, 


§  26 


EVIDENCE  BEFORE  THE  GRAND  JURY. 


37 


however,  that  the  testimony  goes  before  the  grand  jury  in  the 
absence  of  the  judge,  and  very  often  while  the  prosecuting 
officer  is  not  in  the  room.  Hence,  to  confine  grand  juries  to 
the  technical  rules  of  evidence  may  be  intolerable  in  practice.1 
As  a  general  rule  the  fact  that  some  incompetent  evidence  was 
received  in  connection  with  competent  evidence,  or  an  incom- 
petent witness2  examined,  is  not  ground  for  quashing  an  in- 
dictment, since  these  errors  may  be  corrected  on  the  trial.3 

Many  of  the  cases  refuse  absolutely  to  inquire  into  the  ques- 
tion of  the  character,  or  the  insufficiency,  or  incompetency  of 
the  evidence  on  which  the  indictment  is  based,  regarding  the 
finding  of  the  indictment  and  its  indorsement  as  conclusive  of 
the  legality,  propriety  and  sufficiency  of  the  evidence.4  But 
an  indictment  which  plainly  appears  to  the  court  to  have  no 
evidence  to  support  it,  except  that  which  is  wholly  incompe- 
tent, must  be  set  aside.5  Thus,  an  indictment  based  wholly 
on  the  evidence  of  the  accused,  who,  in  violation  of  his  consti- 
tutional privilege,  was  compelled  to  testify  before  the  grand 
jury,6  or  on  the  knowledge  of  a  grand  juror  who  was  not  sworn 


1  State  v.  Wolcott,  21  Conn.  271,  280 ; 
State  v.  Boyd,  2  Hill  (S.  Car.)  288, 
289. 

2  "Whether  witnesses  are  competent 
is  often  a  very  difficult  question  of 
law.  To  hold  that  if  a  grand  jury 
happen  to  examine  a  single  incompe- 
tent witness  their  finding  will  be 
vitiated,  is  taking  extreme  ground." 
Dillon,  J.,  in  State  v.  Tucker,  20  Iowa 
508,  510. 

3  Com.  v.  Knapp,  9  Pick.  (Mass.) 
496,  496;  State  v.  Fasset,  16  Conn. 
458,  471;  Bloomer  v.  State,  3  Sneed 
(Tenn.)  66,  70;  Rex  v.  Marsh,  6  Ad.  & 
El.  236;  State  v.  McLeod,  1  Hawks 
344;  State  v.  Logan,  1  Nev.  509,  516; 
State  v.  Baker,  20  Mo.  338 ;  Hope  v. 
People,  83  N.  Y.  418,  423. 

4  Creek  v.  State,  24  Ind.  151,  156; 
Hammond  v.  State  (Miss.,  1897),  21 
So.  Rep.  149;  State  v.  Shreve  (Mo,, 


1897),  38  S.  W.  Rep.  548;  People  v. 
Sebring,  66  Mich.  705,  707,  33  N.  W. 
Rep.  808;  United  States  v.  Reid,  2 
Blatchf.  435,  466;  Low's  Case,  4 
Maine  439,  446;  Stewart  v.  State,  24 
Ind.  142,  145;  People  v.  Hulbut,  4 
Den.  (N.  Y.)  133,135;  Hope  v.  Peo- 
ple, 83  N.  Y.  418 ;  State  v.  Fowler,  52 
Iowa  103,  104;  People  v.  Naughton,  7 
Abb.  Pr.  n.  s.  (N.  Y.)  421. 

5  Sparrenberger  v.  State,  53  Ala.  481, 
486;  People  v.  Restenblatt,  1  Abb.  Pr. 
268,  272;  United  States  v.  Farrington, 
5  Fed.  Rep.  343;  State  v.  Logan,  1 
Nev.  509,  516;  United  States  v.  Coo- 
lidge,  2  Gall.  364;  Com.  v.  Knapp,  9 
Pick.  496,  498;  People  v.  Briggs,  60 
How.  Pr.  Rep.  17,  30 ;  Royce  v,  Terri- 
tory (Okl.,  1897),  47  Pac.  Rep.  1083. 

6  State  v.  Froiseth,  16  Minn.  296, 
298;  United  States  v.  Edgerton,  80 
Fed.  Rep.  374 ;  post,  §27. 


38 


CRIMINAL    EVIDENCE. 


§27 


as  a  witness,1  or  partly  on  evidence  given  by  the  wife  of  the 
accused,2  or  upon  the  evidence  of  physicians  which  came  under 
the  rule  of  statutory  privilege,3  is  invalid.4 

An  indictment  can  not  stand  unless  it  is  based  on  evidence 
which,  at  some  time  or  another,  has  been  considered  by  the 
grand  jury  which  finds  it.  The  grand  jury  may,  without  re- 
examining witnesses,  find  one  indictment  as  a  substitute  for  an- 
other previously  found.5  But  an  indictment  which  has  been 
quashed,  or  on  which  a  nol.  pros,  has  been  entered,  is  not  alone 
evidence  enough  to  support  a  new  indictment.6 

§  27.    The  accused  as  a  witness  before  the  grand  jury. — 

Under  the  universal  constitutional  provisions  that  no  one  shall 
be  compelled  in  any  criminal  matter  to  be  a  witness  against 
himself,  it  seems  that  an  indictment  should  be  quashed  when 
the  defendant  was  compelled  by  subpoena  to  testify  before  the 
grand  jury,  and  the  indictment  is  founded  on  his  testimony 
alone.7  The  fact  that  the  accused  voluntarily  testifies  before  the 
grand  jury  affords  no  ground  for  setting  aside  the  indictment. 
It  must  be  shown,  however,  not  only  that  his  appearance  was 
voluntary,  but  that  he  confessed  his  wrong-doing  voluntarily 
and  not  inadvertently,  or  under  the  constraint  of  his  situa- 
tion, or  under  the  obligation  of  an  oath.8 


1  State  v.   Cain,   1  Hawks.  (N.   C.) 
352,  353.     Gf.  Com. 
Mass.  453,  455. 

2  People  v.   Briggs,  60  How.  Pr.  17; 
Com.  v.Woodcroft,17  Pa.  Co.  Ct.  E.  554, 

'People  v.   Sellick,  4  N.  Y.   Crim. 
Rep.  329. 
4  In  United  States  v.  Coolidge,  2  Gall. 


statement  of  a  witness,  which  was  not 
Hayden,    163    evidence,  a  cassetur  must  be  entered." 

5  Com.  v.  Woods,  10  Gray  (Mass.) 
477,  483 ;  Creek  v.  State,  24  Ind.  151, 156. 

6Sparrenberg  v.  State,  53  Ala.  481, 
486. 

'State  v.  Froiseth,  16  Minn.  296, 
298 ;  Boone  v.  People,  148  111.  440,  449 ; 


364,  the  court  said,  setting  aside  an  People  v.  Haines,  1  N.  Y.  Supp.  55; 

indictment  based  upon  the  evidence  United   States    v.   Edgerton    (D.   C, 

of  a  witness  not  sworn :     "The  grand  1897),  80  Fed.  Rep.  374. 

jury  is  the  great  inquest  between  the  This  rule  is  applicable,  though  the  ac- 

government  and  the  citizen.     It  is  of  cused  was  cautioned  in  testifying  and 

the  highest  importance  that  this  in-  was  not  sworn.     People  v.  Singer,  5 

stitution  be  preserved  in  its  purity  N.  Y.  Cr.  Rep.  1-4,  18  Abb.  N.  C.  96; 

and  no  citizen  tried  until  he  has  been  State  v.  Donelon,  45  La.  An.  744,  12 

regularly  accused.     Every  indictment  So.  Rep.  922,  923. 

is  subject  to  the  control  of  the  court,  8  People  v.  King,  28  Cal.  265,272; 

and  this  indictment  having  been  found  United  States  v.  Brown,  1  Sawy.  531, 

irregularly, and  upon  themereunsworn  537. 


§  28         EVIDENCE  BEFORE  THE  GRAND  JURY.  39 

The  question  arises,  ought  an  indictment  to  be  quashed  on 
motion  merely  because  the  accused,  being  at  that  time  not 
charged  with  crime,  happened  to  be  one  of  several  witnesses 
summoned  and  examined  by  the  grand  jury  in  investigating  a 
crime? 

If  any  person  summoned  fails  to  claim  his  privilege  against 
answering  incriminating  or  implicating  questions,  the  mere 
fact  that  he  has  testified  is  not  enough  to  invalidate  an  in- 
dictment against  him,  though  based  solely  upon  his  testi- 
mony.1 Nor  will  the  fact  that  a  suspected  person  has  been  re- 
quired to  give  evidence  in  another  matter  be  sufficient  to  set 
aside  an  indictment  on  the  grounds  that  he  is  compelled  to 
testify  against  himself,  unless  it  affirmatively  appears  that  he 
was  indicted  wholly  or  in  part  on  his  own  admissions.2 

§  28.    Sufficiency  of  evidence  before  the  grand  jury. — The 

early  judges,  prompted,  doubtless,  by  a  too  great  subserviency 
to  the  crown,  and  by  a  disgraceful  zeal  for  securing  the  punish- 
ment of  those  who  were  obnoxious  to  the  royal  power,  did  not  re- 
quire that  the  evidence  presented  to  the  grand  jurors  on  which 
an  indictment  was  based  should  be  either  copious  or  convincing. 
"  If  there  be  probable  evidence,  they  ought  to  find  the  bill," 
says  Hale,8  "because  it  is  but  an  accusation,  and  the  trial  fol- 
lows." The  better  and  more  modern  rule,  as  stated  by  Black- 
stone,  is  that  "  a  grand  jury  ought  to  be  thoroughly  persuaded 
of  the  truth  of  an  indictment,  so  far  as  their  evidence  goes, 
and  not  to  rest  satisfied  with  remote  probabilities."4  In  other 
words,  the  grand  jury  ought  not  to  indict  unless  they  are  con- 
vinced that  the  accused  is  guilty  and  that  the  evidence  before 
them  is  sufficient,  if  unexplained  and  uncontradicted,  to  con- 
vict him.5 

1  United  States  v.  Brown,  1  Sawy.  tion  exists  that  either  was  examined 

531 ;  Boone  v.  People.  148  111.  440.  against  himself.     State  v.  Frizell,  111 

2Mackin   v.    People,    115  111.   312;  N.  Car.  722,  723,  16  S.  E.  Rep.  409. 

States  v.  Hawks,  56  Minn.  129,  139.  *  2  Hale  P.  C.  157. 

Where  co-defendants  jointly  indicted  4  4  Bl.  Com.  303. 

were    examined    by   the  grand  jury  s  In  re  Grand  Jury,   2  Sawy.  670; 

prior  to  the  indictment,  no  presump-  1  Chitty  Cr.  Law  318;  Peoples.  Hyler, 


40  CRIMINAL    EVIDENCE.  §  29 

§  29.    Contempt  of  witness   before  the  grand  jury. — The 

grand  jury  is  a  part  of  the  court.  Its  session  is  a  part  of  the 
court,  and  witnesses  summoned  before  it  are  amenable  to  pun- 
ishment for  contempt  if  they  refuse  to  appear  or  to  testify.1 
The  grand  jurors  may  direct  their  own  officer  to  take  the  witness 
before  the  court  in  order  that  he  may  be  punished  if  he  re- 
mains contumacious,  and  the  judicial  sentence,  whether  fine 
or  imprisonment,  is  final  and  conclusive.2 

§  30.  The  indictment  is  not  evidence. — The  indictment  is 
read  in  the  statement  of  the  case.  It  does  not  when  thus  read 
have  the  weight  and  significance  which  attach  to  it  if  read  in 
evidence.  Its  true  and  sole  use  is  to  charge  the  crime,  and  to 
inform  the  accused  of  the  offense  alleged  against  him.  The  in- 
dictment is  not  evidence  and  should  not  be  read  to  or  by  the 
jurors  as  such,  either  in  the  court-room  or  elsewhere.  If  the 
court  shall  permit  this,  and  the  indictment  is  thus  placed  in 
evidence  without  any  limitation  or  any  explanation  of  the  pur- 
pose of  its  introduction,  the  jury  may  take  it  as  an  intimation 
from  the  court  that  the  mere  fact  of  the  accused  having  been  in- 
dicted is  material,  and  must  be  considered  in  determining  his 
guilt.3 

2  Park  Cr.  Rep.  570,  575;  People  v.  28  N.Y.  Supp.  500,  504;  Lockwood  v. 

Price,  2  N.  Y.  Sup.  414,  53  Hun  185,  State,    1  Ind.  161 ;    Ward  v.   State,  2 

People  v.  Baker,  10  How.   Pr.   567;  Mo.  120;  People,  ex  rel.,  Hackley  v. 

People  v.  Vaughan,  42  N.Y.  S.  959;  Kelly,  24  N.  Y.    74;    People,  ex  rel., 

State    v.    Addison,    2     S.    Car.    356;  Phelps  v.   Fancher,  2  Hun,  226.      A 

State  v.    Fasset,   16  Conn.  458,   473 ;  witness  is  not  in  contempt  who  re- 

In  re  Grand  Jury,  62  Fed.  Rep.  840.  fuses    to    answer     self-incriminating 

And  this  is  the  statutory  rule  in  many  questions  before  the  grand  jury.    State 

states.  v.  Lewis  (Iowa,  1897),  65  N.  W.  Rep. 

» In  re  Taylor,  8  Misc.  Rep.  159,  28  295. 

N.  Y.  Supp.  500,  509;  Com.  v.  Crans,  3  3  State  v.   Hart,   66  Mo.   208,  215; 

Pa.  L.  Jour.  442,  453.  State  v.  Desroches,  48  La.  An.  428,  19 

2  In  re  Taylor,  8   Misc.  Rep.   159,  So.  Rep.  250. 


CHAPTER  IV. 

VARIANCE    AND    PROOF    OF    THE    VENUE. 

§31.   Proving  the  substance  of  the  of-  §35.   Proving    the    venue  —  Judicial 

fense  —  What  variances    are  notice  of  general  geographical 

material.  facts. 

32.  Proof  of  essential  particulars  of  36.  The  venue  may  be  proved  by 

persons,  time  and  place.  circumstantial  evidence  — 

33.  Variance    in    names — Idem  so-  Proof    beyond    a  reasonable 

nans.  doubt  not  required. 

34.  Variance  in  proving  species  or        37.  Proof  of  venue  in  forgery  and 

genus  of  animals.  crimes    committed  in   retire- 

ment. 

§  31.  Proving  the  substance  of  the  offense — What  variances 
are  material. — The  strict  technical  rules  formerly  governing 
this  subject  have  been  greatly  relaxed,  if  not  altogether  abro- 
gated, by  statutory  enactment  or  by  the  liberal  spirit  of  the 
modern  courts  of  criminal  jurisdiction.  In  determining 
whether  a  variance  is  material,  the  question  to  be  decided  is, 
does  the  indictment  so  far  fully  and  correctly  inform  the 
defendant  of  the  criminal  act  with  which  he  is  charged. that, 
taking  into  consideration  the  proof  which  is  introduced  against 
him,  he  is  not  misled  in  making  his  defense,  or  placed  in  dan- 
ger of  being  twice  put  in  jeopardy  for  the  same  offense?1  If  this 
be  not  so,  then  the  variance  is  material,  and  the  state,  having 
failed  to  prove  the  crime,  in  substance  as  it  is  alleged,  the  ac- 
quittal of  the  accused  should  be  directed. 

Whether  a  greater  strictness  of  proof  is  required  in  criminal 
than  is  necessary  in  civil  proceedings  in  favor  of  life  and 
liberty  is  a  question  upon  which  the  cases  differ.2     But  though 

1  Harris  v.  People,  64  N..  Y.  148, 153,  283,  286.  Contra,  2  Russ.  on  Cr.,  §  588 ; 
154.  Rose.  Cr.  Ev.  73 ;  United  States  v.  Brit- 

2  Beech's  Case,  1  Leach  Cr.  L.  158;  ton,  2  Mason  464,  468;  Walker  v. 
United  States  v.  Porter,  3  Day  (Conn.)  State,  91  Ala.  76,  9  So.  Rep.  87. 

(41) 


42  CRIMINAL    EVIDENCE.  §  32 

the  general  rule  is  that  the  crime  which  is  laid  in  the  indict- 
ment must  be  proved  substantially  as  alleged,  no  variance  will 
be  material  if  the  allegations  of  the  indictment  are  separable 
and  the  substance  of  the  crime  is  proven,  though  some  imma- 
terial averments  remain  unproved.1 

And  as  a  general  rule  any  allegation  which  is  not  descrip- 
tive of  the  identity  of  the  offense  itself,  that  is,  which  does  not 
mark  it  out  as  a  crime  and  distinguish  it  from  other  crimes, 
or  from  actions  which  are  not  criminal,  and  which  therefore 
may  be  omitted  without  affecting  the  criminality  of  the 
charge  and  without  detriment  to  the  indictment,  is  mere  sur- 
plusage and  need  not  be  proved.2 

§  32.    Proof  of  essential  particulars  of  persons,  time  or  place. 

— "  The  general  rule  is  that  all  averments  necessary  to  consti- 
tute the  substantive  offense  must  be  proved.  If  there  is  any 
exception,  it  is  from  necessity,  or  great  difficulty  amounting 
to  such  necessity,  as  where  one  could  not  show  the  negative 
and  where  the  other  with  perfect  ease  can  show  the  affirma- 
tive."3 All  circumstances  of  person,  place  or  thing,  which  are 
described  in  the  indictment  with  extreme  or  unnecessary  par- 
ticularity, must  be  proven  strictly,  if,  by  reason  of  such  a  mode 
of  pleading,  the  details  are  essential  to  enable  the  jury  to  per- 
ceive the  identity  of  the  thing  or  person  proved  with  that  al- 
leged.* Thus  where  one  is  indicted  for  stealing  an  animal 
which  is  described  either  by  color,  age  or  brand,  these  details 
become  material,  and  a  variance  is  fatal.5   The  time  and  place 

2In  Bork  v.  People,  91  N.  Y.  5,  13,  3Shaw,  J.,  in  Com.  v.  Thurlow,  24 

the  court  says:     "Where  an  offense  Pick.  374,  381. 

may  be  committed  by  doing   one  of  4  Sweat  v.  State,  4  Tex.  App.  617,  621. 

several  things,   the  indictment  may,  5  Coleman  v.   State,   21  Tex.   App. 

in  a  single  count,  group  them  together,  520,  528,  2  S.  W.  Rep.   859;  State  v. 

and  charge  the  defendant  with  having  Jackson,   30  Maine   29,30;  Wiley  v. 

committed  them  all,  and  a  conviction  State,  74  Ga.  840;  Groom  v.  State,  23 

may  be  had  on  proof  of  the  commis-  Tex.    App.   82,   86,   87.     When   by   a 

sion  of  any  one  of  those  things  with-  statute  animals  are  distinguished  ac- 

out  proof  of  the  commission  of  the  cording  to  species,  proof  of  one  species 

others."     See,  also,  People  v.  Davis,  is  a  variance,  if  another  is  alleged. 

56  N.  Y.  95,  101.  State  v.  Buckles,  26  Kan.  237 ;  Rex.  v. 

2Com.  v.  Rowell,  146  Mass.  128,  130.  Cook,  1   Leach  Cr.   L.   123;  States 


§33 


VARIANCE    AND    PROOF    OF    THE    VENUE. 


43 


of  the  crime  should  be  stated  with  certainty  in  the  indictment, 
though  it  is  not  necessary  to  prove  them  precisely  as  stated, 
unless  they  are  necessary  ingredients  in  the  crime.1  But  it 
must  always  be  alleged  and  proved  that  the  crime  was  com- 
mitted prior  to  the  date  of  the  indictment,  and  within  the 
jurisdiction  of  the  court.2  When,  however,  time  and  place  are 
material,  as  in  a  prosecution  for  selling  liquor  between  speci- 
fied dates,  or  on  forbidden  days,8  or  for  transporting  liquor  be- 
tween given  places,4  the  details  of  time  and  place  must  be 
proved  precisely  as  alleged. 

§  33.  Variance  in  names — Idem  sonans. — A  variance  be- 
tween the  name  of  a  person  as  alleged  and  as  it  is  proved, 
whether  it  be  the  name  of  a  person  assaulted  or  killed,  or  of 
the  person  who  owned  the  property  which  was  the  subject  of 
the  crime,  has  often  been  held  fatal.5  A  mere  error  in  spell- 
ing, or  the  use  of  a  nickname,  is  no  variance.  If  the  names  be 
idem  sonans,  or,  if  sufficient  evidence  is  introduced  to  identify 
the  person  intended,  the  variance  of  name  is  immaterial  and 
will  be  disregarded.6 


Godet,  7  Ired.  (N.  C.)  210,  211 ;  State «. 
Turley,  3  Humph.  323,  325.  An  allega- 
tion of  stealing  an  animal  is  not  sus- 
tained by  proof  of  the  theft  of  a  car- 
cass. Hunt  v.  State,  55  Ala.  138;  State 
v.  Jenkins,  6  Jones  (N.  C.)  19,  20. 

1  Arch.  Cr.  PI.  40,  41 ;  Crass  v.  State, 
30  Tex.  App.  480,  17  S.  W.  Rep.  1096; 
Blackwell  v.  State,  30  Tex.  App.  416, 
418;  People  v.  Emerson,  7  N.Y.  Crim. 
Rep.  97,  105;  Com.  v.  Harrington,  3 
Pick.  (Mass.)  26 ;  People  v.  Stocking,  50 
Barb.  (N.  Y.)  573, 586 ;  People  v.  Jack- 
son, 111  N.Y.  362, 6  N.  Y.Crim.  Rep.  393, 
399  (variance  in  time)  ;  United  States 
v.  Mathews,  68  Fed.  Rep.  880;  Smith 
v.  State,  108  Ala.  1,  18  So:  Rep.  306; 
Johnson  v.  State,  13  Ind.  App.  299; 
Hans  v.  State  (Neb.,  1897),  69  N.  W. 
Rep.  838. 

2Arciav.  State,  28  Tex.   App.  198; 


State  v.  Dorr,  82  Me.  212, 214;  States. 
Bain,  43  Kan.  638,  640. 

3  Com.  v.  Purdy,  146  Mass.  138,  139. 

4  State  v.  Libby,  84  Me.  461,  464. 

5  Washington  v.  State,  72  Ala.  272, 
276;  Johnson  v.  State,  111  Ala.  66,  20 
So.  Rep.  590;  Sullivan  v.  People,  6 
Colo.  App.  458;  People  v.  Armstrong, 
114  Cal.  570,  46  Pac.  Rep.  611 ;  People 
v.  Main,  114  Cal.  632,  46  Pac.  Rep.  612 ; 
Com.  v.  Morningstar,  12  Pa.  Co.  Ct. 
R.  34 ;  Clements  v.  State,  21  Tex.  App. 
258;  McGary  v.  People,  45  N.  Y.  153, 
157;  Sykes  v.  People,  132  111.  32,  45; 
King  v.  State,  44  Ind.  285,  286;  People 
v.  Hughes,  41  Cal.  234,  237;  Under- 
wood v.  State,  72  Ala.  220,  222;  State 
v.  Bell,  63  N.  Car.  99,  n. 

6  Williams  v.  United  States,  3  App. 
D.  C.  335;  Barnes  v.  People,  18  111. 
52,  53;  State  v.  Humble,  34  Mo.  App. 


44 


CRIMINAL    EVIDENCE. 


§34 


Whether  names  are  idem  sonans  is  never  a  question  of  spell- 
ing, but  of  pronunciations  determined  largely  by  usage.  If 
the  names,  though  spelled  differently,  sound  alike,  the  court 
may  determine  that  they  are  idem  sonaiis  and  instruct  the  jury 
to  disregard  the  variance  in  spelling.1  But  if  they  are  not 
necessarily  pronounced  alike,  the  question,  whether,  being 
spelled  differently,  they  are  idem  sonans,  is  for  the  jury.2 

§  34.   Variance  in  proving  species  or  genus  of  animals. — An 

indictment  for  stealing  a  cow,3  chickens,4  a  sheep,5  a  horse,6 
or  a  hog,7  will  be  sustained  by  proof  of  the  larceny  of  any  variety 
or  sex  of  those  animals.  The  generic  name  ought  and  in  com- 
mon speech  does  include  every  variety  of  the  animal,  whether 
produced  naturally,  as  by  age  and  sex,  or  artificially  by  culti- 
vation, or  occupation.  Hence,  the  above  rule  would  seem 
based  on  reason  and  common  sense.  It  is  repudiated  by  the 
English  courts,8  and  by  those  criminal  tribunals  of  this  coun- 
try whose  conservatism  has'  deterred  them  from  cutting  loose 
from  technical  rules,  or  inquiring  into  the  reasonableness,  or 
propriety  of  such  rules.9 


343,  345-348;  Weitzel  v.  State,  28  Tex. 
App.  523;  Smurr  v.  State,  88  Ind.  504, 
506;  State  v.  Gordon,  56  Kan.  64. 

1  State  v.  Havely,  21  Mo.  498. 

2  Com.  v.  Donovan,  13  Allen  (Mass.) 
571,  572;  Corn.  v.  Mehan,  11  Gray  321, 
323 ;  Lawrence  v.  State,  59  Ala.  61 ; 
Underwood  v.  State,  72  Ala.  220,  222 ; 
Com.  v.  Warren,  143  Mass.  568.  For 
illustrations,  see  Faust  v.  United 
States,  163  U.  S.  452,  16  S.  Ct.  1112; 
People  v.  James,  110  Cal.  155,  42  Pac. 
Rep.  479;  Bennett  v.  State  (Ark., 
1896),  36  S.  W.  Rep.  947 ;  State  v.  Gar- 
vin (S.  Car.,  1897),  26  S.  E.  Rep.  570; 
Henderson  v.  State  (Tex.,  1897),  38 
S.  W.  Rep.  618.  "It  matters  not  how 
the  names  are  spelled,  what  their 
orthography.  They  are  idem  sonans 
within    the    meaning  of  the  books, 


if  the  attentive  ear  finds  difficulty 
in  distinguishing  them  when  pro- 
nounced, or  common  and  long  estab- 
lished usage  has  by  corruption  or 
abbreviation  made  them  identical  in 
pronunciation."  Robson  v.  Thomas, 
55  Mo.  581 ;  appd.  in  State  v.  Jones,  55 
Minn.  329,  332;  State  v.  Griffie,  118 
Mo.  188, 197. 

3  Parker  v.  State,  39  Ala.  365,  366. 

4  State  v.  Bassett,  34  La.  An.  1108, 
1110. 

5McCully's  Case,  2  Lew.  C.  C.  272. 

6  Davis  v.  State,  23  Tex.  App.  210. 

'State  v.  Godet,  7  Ired.  N.  C.  210, 
211. 

82EastP.  C.  617. 

9  Hooker  v.  State,  4  Ohio  348,  351 ; 
Turley  v.  State,  3  Humph.  (Tenn.) 
323,  325. 


§  35        VARIANCE  AND  PROOF  OP  THE  VENUE.  45 

§  35.  Proving  the  venue — Judicial  notice  of  general  geo- 
graphical facts. — The  indictment  is  not  good  unless  it  shows 
upon  its  face  the  venue  of  the  crime,  and  that  it  was  committed 
within  the  jurisdiction  of  the  court.  The  venue  is  a  jurisdic- 
tional fact  and  must  always  be  proved  by  the  state  as  a  part  of 
its  case.  That  is  to  say,  the  state  must  prove  that  the  crime 
alleged  in  the  indictment  was  committed  within  the  territorial 
jurisdiction  of  the  court.1  And  usually  the  precise  venue 
must  be  proved  affirmatively  and  substantially,  and  a  failure  to 
do  so  is  ground  for  a  new  trial.2 

If,  however,  the  crime  is  shown  to  have  been  committed  in, 
or  very  near,  a  certain  town,  village,  or  other  minor  territorial 
subdivision,  it  is  not  necessary  to  prove  that  this  minor  divis- 
ion is  in  the  county.  And  if  it  is  proved  to  have  been  com- 
mitted anywhere  in  a  county,  the  latter  need  not  be  proved  to 
be  in  the  state.  The  jury,  as  a  part  of  the  court,  are  bound  to 
take  notice  of  general  geographical  facts.3 

§  36.  The  venue  may  be  proved  by  circumstantial  evidence 
— Proof  beyond  a  reasonable  doubt  not  required. — The  venue 
need    not  be  proved   by  direct  and  positive  evidence.      It  is 

1  State  v.  McGinniss,  74  Mo.  245,  247 ;  without  sufficient  evidence  to  support 
State  u.  Wacker,  16  Mo.  App.  417,  421;  it.  Berry  v.  State,  92  Ga.  47,  48, 
Dyer  v.  State,  74  Ind.  594, 595 ;  Harlan  17  S.  E.  Rep.  1006 ;  Futch  v.  State,  90 
v.  State,  134  Ind.  339,  341 ;  Stazey  v.  Ga.  472. 

State,  58  Ind.  514;  State  v.  Mills,  33  sLuck  v.  State,  96  Ind.  16,  20;  Les- 

W.  Va.  455,  457;  State*.  Hobbs,  37  lie  v.  State,  35  Fla.  184,  17  So.  Rep. 

W.  Va.  812,  814;  Randolph  v.  State,  559;  People  v.  Breese,  7  Cow.  (N.  Y.) 

100  Ala.  139,  141;  Jones  v.  State,  58  429;  Pickeral  v.  Com.  (Ky.),  30  S.  W. 

Ark.  390,  396;  Frazierv.  State,  56  Ark.  Rep.  617;  People  v.  Etting,  99  Cal. 

242,  244;  Berry  v.  State,  92  Ga.  47,  48,  577,  34  Pac.  Rep.  237;  Lewis  v.  State 

17  S.  E.  Rep.  1006 ;  Williams  v.  State,  (Tex.,1894),  24  S.  W.  Rep.  903 ;  People 

21  Tex.  App.  256,  257 ;   Ryan  v.  State,  v.  Curley,  99  Mich.  238,  58 N.  W.  Rep. 

22  Tex.  App.  699,  703;  Larkin  v.  Peo-  68;  State  *.  Farley,  87  Iowa  22,  53  N. 
pie,  61  Barb.  (N.  Y.)  226;  Yates  v.  W.  Rep.. 1089;  Sullivan  v.  People,  114 
State,  10  Yerg.  (Tenn.)  549.  111.   24;   State  v.  Burns,  48  Mo.  438; 

2  The  objection  that  the  venue  is  not  State  v.  Waller,  70  Mich.  237,  239.  A 
proved  must  be  taken  at  the  trial,  failure  by  the  state  to  prove  the  venue 
State  v.  Hopkins  (Iowa,  1895),  62  N.  may  be  cured  by  evidence  introduced 
W.  Rep.  656 ;  but  will  be  presumed  to  by  the  defendant  from  which  it  may 
be  included  in  an  exception  to  the  be  inferred.  Scott  v.  State,  42  Ark.  73. 
verdict  that  it  is  against  the  law  and 


46 


CRIMINAL    EVIDKNCE. 


36 


sufficient  if  it  may  be  reasonably  inferred  from  the  facts  and 
circumstances  which  are  proven  and  are  involved  in  the  crim- 
inal transaction.  It  is  enough  if  it  may  be  inferred  from  the 
circumstances  by  the  jury  that  the  crime  was  committed  in  the 
county  alleged  in  the  indictment.1 

The  venue  need  not  be  proved  beyond  a  reasonable  doubt.2 
If  the  only  rational  conclusion  from  the  facts  in  evidence  is 
that  the  crime  was  committed  in  the  county  alleged,  the  proof 
is  sufficient.3  If  there  are  in  the  evidence  references  to  various 
localities  as  to  streets,  landmarks  or  public  buildings,  at  or 
near  the  scene  of  the  crime,  which  are  known  by  or  are  prob- 
ably familiar  to  the  jury  as  being  in  the  territorial  jurisdiction 
of  the  court,  it  is  sufficient  proof  of  venue.4 


1  Tinney  v.  State,  111  Ala.  74,  20  So. 
Rep.  597;  People  v.  Kamaunu,  110 
Cal.  609,  42  Pac.  Rep.  1090;  State  v. 
Roach,  2  Mo.  App.  Rep.  1114;  Thorn- 
ell  v.  People,  11  Colo.  305, 17  Pac.  Rep. 
904;  Com.  v.  Costley,  118  Mass.  1,  9, 
26;  People  v.  Manning,  48  Cal.  335; 
Bland  v.  People,  4  111.  364;  State  v. 
Snyder,  44  Mo.  App.  429,  430;  State 
v.  Burns,  48  Mo.  438,  440;  State  v. 
McGinniss,  74  Mo.  245,  246;  Beavers 
v.  State,  58  Ind.  530,  537 ;  Hoffman  vm 
State,  12  Tex.  App.  406,  407 ;  Dumas 
v.  State,  62  Ga.  58,  65;  Weinecke  v. 
State,  34  Neb.  14,  51  N.  W.  Rep.  307; 
Wallis  v.  State,  54  Ark.  611,  620;  Rob- 
son  v.  State,  83  Ga.  166,  9  S.  E.  Rep. 
610,  611;  State  v.  Small,  26  Kan.  209; 
State  v.  West,  69  Mo.  401 ;  Brooke  v. 
People  (Colo.,  1897),  48  Pac.  Rep.  502. 

2  State  v.  Burns,  48  Mo.  438,  440; 
Boggs  v.  State  (Tex.,  1894),  25  S.  W. 
Rep.  770;  State  v.  Benson,  22  Kan. 
471 ;  Warrace  v.  State,  27  Fla.  362,  8 
So.  Rep.  748;  Hoffman  v.  State,  12 
Tex.  App.  406,  407;  Achterberg  v. 
State,  8  Tex.  App.  463 ;  Wilson  v.  State 
(Ark.,  1896),  36  S.  W.  Rep.  842. 

s  State  v.  Sanders,  106  Mo.  188,  190, 
17  S.  W.  Rep.  223 ;  Weinecke  v.  State, 


34  Neb.  14,  24,  51  N.  W.  Rep.  307; 
Abrigo  v.  State,  29  Tex.  App.  143,  15 
S.  W.  Rep.  408;  Andrews  v.  State,  21 
Fla.  598,  611 ;  Com.  v.  Costley,  118 
Mass.  1,  27.  "  The  jury  has  a  right  to 
infer  from  the  testimony  before  them 
whether  it  was  done  in  the  county. 
They  know  all  the  facts  and  the 
maxim  vicini  vicinorum  prcesumunter 
scire  applies."  Bryant  a.  State,  80  Ga. 
272,  275. 

4  Duncan  v.  State,  29  Fla.  439,  451 ; 
Andrews  v.  State,  21  Fla.  598,  611; 
State  «.  Ruth,  14  Mo.  App.  226 ;  People 
v.  McGregar,  88  Cal.  140,  143,  145,  26 
Pac. Rep. 97 ;  Cluckv.  State, 40  Ind.  263, 
273;  Com.  v.  Ackland,  107  Mass.  211. 
The  evidence  of  one  uncontradicted 
witness  to  the  venue  is  sufficient. 
Speight  v.  State,  80  Ga.  512,  5  S.  E. 
Rep.  506.  Some  cases  hold,  however, 
that  the  jury  can  not  assume  that  the 
street  or  public  place  in  which  the 
evidence  shows  the  crime  was  com- 
mitted is  within  a  town,  city  or  county 
within  the  jurisdiction,  but  that  this 
fact  must  appear  from  the  proof. 
Evans  v.  State,  17  Fla.  192 ;  Dougherty 
v.  People,  118  111.  160. 


§  37  VARIANCE    AND    PROOF    OF    THE    VENUE.  47 

§  37.  Proof  of  venue  in  forgery  and  crimes  done  in  retire- 
ment.— That  the  venue  shall  be  proved  by  circumstantial  evi- 
dence is  necessarily  the  case  in  respect  to  forgery  and  similar 
crimes,  which  are  secretly  planned  and  committed,  out  of  sight 
of  all  but  the  accomplices  of  the  criminal.  Hence  the  venue 
of  the  crime  of  forging  bank-notes  or  of  uttering  forged  instru- 
ments may  be  correctly  inferred  by  the  jury  from  evidence  that 
forged  and  counterfeit  notes  and  implements  for  their  manu- 
facture were  found  in  the  possession  of  the  accused  in  the 
county  as  alleged,1  or  that  he  had  always  resided  in  the  county 
and  confessed  the  forgery  there.2 

Though  proof  of  the  finding  of  a  dead  body  in  the  venue 
alleged  is  not,  taken  alone,  sufficient  proof  of  venue,  it  is  a 
circumstance  to  go  to  the  jury  to  be  considered  by  them  with 
other  evidence.3  So  if  a  corpse  is  found  in  a  river  with  the 
marks  of  mortal  injuries  on  it  in  such  a  situation  that  from  the 
evidence  it  is  clear  that  it  was  not  borne  there  by  the  current, 
but  that  it  was  thrown  in  the  stream,  the  jury  may  infer  the 
homicide  was  committed  in  the  county.4 

'Com.  v.  Spencer,   2  Leigh   (Va.)  law  were  otherwise  it  would  be  almost 

751,  756,  757;  State  v.  Poindexter,  23  impossible  to  convict  any  person  of  a 

W.  Va.  805.    Contra,  Com.  v.  Fagan,  forgery,  for  such  acts  are  done  in  re- 

12  Pa.  Co.  R.  613.  tirement  and   concealment,  far  from 

2  Johnson  v.  State,  62  Ga.  299,  301.  the  sight  of  all  persons  but  confeder- 

The    court  by  Story,  J.,  in  United  ates  in  guilt."     As  to  the  venue  in 

States  v.  Britton,  2  Mason  464,  470,  conspiracy,  see  Dawson  v.  State  (Tex., 

said:     "If  its  existence  in  a  forged  1897),  40  S.  W.  Rep.  731. 

state  is  not  proved  in  any  other  place,  3  Beavers  v.  State,  58  Ind.  530,  537 ; 

it  must,  from  the  necessity  of  the  case,  Marion  v.   State,   20  Neb.   233,   245; 

be    presumed    to   have  been  forged  Lancaster  v.   State,  91  Tenn.  267,  18 

where  its  existence  in  such  state  is  S.  W.  Rep.  777. 

first  made  known.     *    *    *    If  the  '  Com.  v.  Costley,  118  Mass.  1,  2.  6. 


CHAPTER  V. 


PRIMARY  EVIDENCE. 


§38. 

Definition  of  primary  evidence. 

§47. 

39. 

Primarinessof  witnesses — Proof 

of  handwriting. 

48. 

40. 

Evidence  which  is  required  to 

be  in  writing. 

49. 

41. 

Statutory    requirements  as    re- 
gards evidence  of  certain  facts. 

50. 

42. 

Notice  to  produce. 

51. 

43. 

Writings  whose  existence  and 

contents    are     in  issue — Im- 

52. 

peachment  by  contradictory 

53. 

writings. 

44. 

Primary   evidence  of  collateral 
facts. 

54. 

45. 

Exception    in    case  of  proving 

general  results. 

55. 

46. 

Proof  of  records  and  official  ap- 

pointments. 

56. 

Physical  condition  of  personal 
property. 

Incriminating  articles — Weap- 
ons, clothing,  etc. 

Inscriptions  on  bulky  articles. 

Photographs  as  primary  evi- 
dence— Personal  identity. 

Accuracy  and  relevancy  of 
photographs. 

Paintings  and  drawings. 

Real  evidence — Inspection  by 
jurors. 

Compelling  accused  to  submit  to 
inspection  or  to  stand  for 
identification. 

Mode  and  effect  of  identifying 
evidence. 

Identification  of  the  voice. 


§  38.  Definition  of  primary  evidence. — Primary  evidence 
may  be  defined  as  the  highest  or  best  evidence  which,  from  the 
abstract  nature  of  the  facts  to  be  proved,  is  procurable,  and 
which,  under  the  circumstances  of  the  particular  case,  affords 
the  greatest  certainty  of  the  fact,  that  is,  renders  the  probability 
of  its  existence  most  evident  to  the  understanding.  It  is  that 
evidence  which  does  not  indicate  the  existence  of  other  evi- 
dence nearer  the  facts  to  be  proved.1 

The  rule  requiring  primary  evidence  of  a  fact  refers  most 
frequently  to  offers  of  oral  evidence,  to  prove  the  contents  of  a 
writing,  where  the  writing  itself  ought  to  be  produced.  Hence, 
usually,  unless  it  is  shown  that  the  party  claiming  under  the 
writing  is  unable  to  produce  it  after  a  diligent  search,  oral,  or 

1  Anderson's  Law  Dictionary. 
(48) 


§39  PRIMARY    EVIDENCE.  49 

in  fact  any  other  evidence  of  its  contents,  will  be  rejected.1 
So  where  a  letter,  if  produced,  would  be  primary  evidence  of  a 
relevant  fact,  a  press  copy,  even  though  an  exact  chirograph- 
ical  reproduction,  is  inadmissible,  except  as  secondary  evidence 
and  after  the  loss  or  the  destruction  of  the  original  is  shown. 
If  a  writing  has  been  executed  by  all  parties  in  several  parts, 
or  copies,  each  is  primary  evidence  of  the  contents  of  the  writ- 
ing.2 If  it  was  executed  in  counterpart — that  is,  in  duplicate, 
either  part,  though  substantially  the  same  as  the  other,  but 
signed  by  one  party  only,  is  primary  evidence  only  when 
offered  against  the  party  who  signed  it.  Each  of  a  number 
of  copies  made  by  printing,  lithography,  photography,  or  by 
any  process  which  will  secure  exact  uniformity,  is  primary 
evidence  to  prove  the  contents  of  any  or  of  all  the  others. 
Though  all  are  from  a  common  original,  none  is  primary  evi- 
dence of  that  original.3  And  where  the  loss  of  the  original 
and  of  a  press  copy  of  a  letter  is  proved,  a  copy  of  the  press 
copy  is  admissible,  where  its  correctness  as  a  reproduction  of 
the  original  letter  is  vouched  for  upon  the  oath  of  a  witness 
having  competent  knowledge.4 

§  39.   Primariness  of  witnesses — Proof  of  handwriting. — As 

the  production  of  witnesses  who  will  give  the  strongest,  most 
creditable  and  convincing  testimony  is  not  required,  no  prin- 
ciple of  law  is  violated  by  the  introduction  of  faint  or  weak 
evidence,  and  the  withholding  of  that  which  is  strong,  cogent 
and  convincing,  if  both  are  equally  original.  But  it  is  a  very 
natural  inference,  partaking  somewhat  of  the  character  of  a 
legal  presumption,  at  least  in  the  absence  of  explanatory  cir- 
cumstances, that  a  party  who  is  withholding  the  best  evidence 

1Underhill    on     Evid.,    §§  30,    31.  the  proof.    Evidence  which  carries  on 
"Whether    evidence    is    primary    or  its  face  no  indication  that  better  re- 
secondary  has  reference  to  the  nature  mains  behind   is   not  secondary  but 
of  the  case  in  the  abstract,  and  not  to  primary."     1   Greenl.  on  Evid.,  §84. 
the  circumstances  under  which  the  *  State  v.  Gurnee,  14  Kan.  Ill,  120. 
party,  in  the  particular  cause  on  trial,  See  Underhill  on  Evid.,  §  106. 
may  be  placed.     It  is  a  distinction  of  s  People  v.  Williams,  64  Cal.  87. 
law  and  not  of  fact;  referring  only  to  4  Winn  v.  Patterson,  9  Pet.  (U.  S.) 
the  quality  and  not  to  the  strength  of  663. 
4— Cr.  Ev. 


50  CRIMINAL    EVIDENCE.  §  40 

of  any  fact  in  issue  is  prompted  by  a  wrong  motive  which 
would  be  defeated  by  its  production.  When,  therefore,  evi- 
dence  is  produced  that  presupposes  or  suggests  the  existence 
of  other  evidence  of  the  same  facts  of  a  more  original  char- 
acter, that  is  to  say,  which  is  more  immediate,  and  which  lies 
closer  to  the  material  facts,  the  evidence  introduced  will  be  re- 
garded as  substitutionary,  and,  as  such,  will  be  rejected. 

The  rule  requiring  the  production  of  primary  evidence  does 
not  compel  a  choice  between  or  among  several  witnesses,  nor 
does  it  necessitate  the  calling  of  any  particular  witness  among 
several  who  have  knowledge  of  a  given  fact.1  So  the  testi- 
mony of  a  witness,  claiming  to  be  a  minor,  to  his  own  age  is 
primary  evidence,  even  if  his  parents  are  living,2  while  the 
oral  evidence  of  a  parent  to  the  age  of  his  child  is  also  pri- 
mary, the  entry  in  a  family  Bible  not  being  of  necessity  the 
best  evidence.3 

An  exception  is  recognized  in  the  case  of  subscribing  wit- 
nesses as  regards  the  proof  of  instruments  which  are  by 
statute  invalid  unless  witnessed.  If  a  subscription  by  wit- 
nesses is  not  required  by  statute,  the  execution  of  the  instru- 
ment may  be  shown  by  the  evidence  of  any  person  who  saw  it 
signed,  or  who  is  familiar  with  the  handwriting,  or  otherwise, 
though  it  is  in  fact  subscribed  by  witnesses.  Hence,  general- 
ly, in  proving  handwriting,  the  testimony  of  a  witness  ac- 
quainted with  it  is  not  secondary  to  that  of  the  writer  him- 
self,4 nor  should  the  testimony  of  the  former  be  excluded  when 
offered  because  the  testimony  of  the  latter  can  be  obtained. 

§40.  Evidence  which  is  required  to  be  in  writing. — Oral  evi- 
dence is  inadmissible  if  the  law  requires  primary  evidence  in 

1  Whart.  Cr.  Ev.,  §360 ;  Com.  v.  Pratt,  In  Lefferts  v.  State,  49  N.  J.  L.  26,  27, 
137  Mass.  98, 107 ;  New  England  Mon.  the  court  said :  "The  testimony  of  the 
Co.  v.  Johnson  (Pa.,  1891),  22  Atl.  man  who  signed  the  documents  *  *  * 
Rep.  974,  29  W.  N.  C.  117.  was  not  of  a  higher  grade  of  evidence 

2  State  v.  Cain,  9  W.  Va.  559,  570.        than  the  testimony  of  a  man  who  had 
3 State  v.  Woods,  49  Kan.  237,   30    seen  him   make  such    signature,   or 

Pac.  Rep.  520,  521 ;  Dobson  v.  Coth-    who  was  acquainted  with  his  writing 

ron,  34  S.  Car.  518;  Whart  Ev.,  §  77.      and  deposed  to  his  opinion."  See,  also, 

4  Com.  v.  Pratt,  137  Mass.  98,  107.    Underhill  on  Evid.,  §§132,  139-141. 


§41  PBIMARY    EVIDENCE.  51 

writing,  or  if  the  party  to  substantiate  his  claims  must  pro- 
duce a  writing.  Judicial  records,  other  public  records,  deeds 
of  conveyance  and  contracts  not  to  be  performed  within  a  year 
are  required  by  statute  to  be  in  writing.  Hence  the  fact  oi 
another  indictment  pending,1  a  prior  verdict  of  acquittal  or 
conviction,2  the  proceedings  and  the  testimony  taken  at  a  cor- 
oner's inquest,  or  at  the  preliminary  examination,3  or  before 
the  grand  jury,  or  any  body  keeping  a  record  of  its  actions, 
must  be  shown  by  the  record  or  by  a  properly  authenticated 
copy.4 

§41.  Statutory  requirement  as  regards  evidence  of  certain 
facts. — Where  by  statute  any  fact  or  transaction  must  be  evi- 
denced in  writing,  it  is  usually  necessary  to  consult  the  statute 
to  understand  its  scope  and  effect,  or  to  ascertain  the  correct 
mode  of  proof  and  when  secondary  evidence  will  be  received. 
Generally,  where  the  statute  requires  that  written  proof  shall 
be  made,  oral  evidence  is  secondary  and  inadmissible  if  the 
writing  is  procurable. 

But  where  either  the  state  or  the  prisoner  can  show  to  the 
satisfaction  of  the  court  that  the  writing  was  executed  and  has 
been  destroyed,  or  can  not  be  found  after  a  reasonable  search, 
its  contents  may  be  proved  by  secondary  evidence.5  Thus  the 
contents  of  the  warrant,  on  which  the  accused  was  arrested, 
or  of  the  indictment  against  him,7  may  be  shown  by  parol 
where  the  loss   of  the  writing  is  proved.8 

1  Saxon  v.  State,  96  Ga.  739;  State  v.     eial  records  see  Underbill  on  Evid. 
McFarlain,  42  La.  An.  803,  806;  State     §§  146-149. 

v.  Grayson,  38  La.  An.  788.  4For  mode  of  proving  naturalization 

2  See  §  195.  see  Underhill  on  Evid.,  §  31. 

3  Robinson    v.    State,   87   Ind.   292,  5  United  States  v.  Reyburn,  6  Pet 
293;  Epps  v.  State,  102  Ind.  539,  546;  (U.  S.)  352,  365. 

Sage  v.  State,  127  Ind.  15,  26;  Leggett  6  Com.  v.  Roark,  62  Mass.  210. 

r.  State,  97  Ga.  426,  24  S.  E.  Rep.  165;  7  State  v.  Whitney,  38  La.  An.  579 

State  v.    Branham,    13   S.    Car.   389;  See  Underhill  on  Evid.,  343,  ante,§  30 

Wright  v.   State,  50  Miss.   332,   335 ;  8  A  witness  may  not  testify  orally  at 

Cicero  v.  State,  54  Ga.  156';  Oliver  v.  to  an  offense   charged   in    a   warrant 

State,  94  Ga.  83,  84,  85.    The  fact  that  which   he   had   himself  issued.     The 

a  preliminary  examination  was  had  warrant  itself  is  the  best  evidence 

may  be  shown  orally.     People  v.  Coff-  State  v.  Talbert,  41  S.  Car.  526,  52<). 
man,  59  Mich.  1.     As  to  proof  of  judi- 


52  CRIMINAL    EVIDENCE.  §  42 

In  many  states  statutes  exist  which  allow  an  instrument, 
duly  acknowledged  and  recorded  or  registered,  to  be  proved  by 
a  certified  copy  of  the  record,  if  the  original  instrument  is  not 
obtainable.1  Such  a  provision  is  of  great  benefit  to  one  who, 
not  being  a  party  or  privy  to  the  writing,  may  never  have  had 
it  in  his  possession,  and  hence  may  not  be  able  to  account  for 
its  absence  by  showing  its  loss  or  destruction.  But  the  in- 
strument itself  is  not  made  secondary  evidence  by  a  statute  re- 
quiring record  and  allowing  proof  by  a  certified  copy,2  nor  can 
a  party  be  excused  from  producing  it  when  he  can  do  so.  For, 
unless  the  statute  makes  the  copy  equal  in  evidentiary  value 
to  the  original,  the  copy  is  secondary  evidence,  and  the  ab- 
sence of  the  original  must  be  accounted  for  before  the  copy 
will  be  received.3 

§  42.  Notice  to  produce. — If  a  writing  is  known  to  be  in  the 
possession  of  the  opposite  party,  or  if  its  whereabouts  are  ab- 
solutely unknown,  he  should  have  notice  to  produce  it,  before 
secondary  evidence  of  its  contents  can  be  received.  This  rule 
is  applicable  to  criminal  prosecutions  with  the  qualification 
that,  as  the  state  has  no  power  to  compel  the  production  of  a 
writing  in  the  rightful  possession  of  the  defendant,  the  notice 
to  him  is  nugatory  and  may,  perhaps,  under  some  circum- 
stances, be  dispensed  with.4  This  is  the  case  when  the  indict- 
ment, as  in  forgery,  or  larceny  of  a  writing,  alleges  the  exist- 
ence of  a  writing,  and  by  implication  that  it  is  in  the  possession 
of  the  accused.5 

§  43.  Writings  whose  existence  and  contents  are  in  issue — 
Impeachment  by  contradictory  writings. — Where  the  existence 
or  the  contents  of  a  writing  which  is  material  to  the  issue,  or 
has  an  important  bearing  upon  the  credibility  of  a  witness,  are 

1  Com.  v.  Emery,  2  Gray  (Mass.)  80 ;  4  Stake  v.  Hanscom,  28  Ore.  427,  43 
Com.  v.  Preece,  140  Mass.  276,  278;  Pac.  R.  167;  State  v.  Gurnee,  14  Kan. 
Underhill  on  Evid.,  §§134,  142c.  Ill,  121;    McGinnis   v.  State,  24  Ind. 

2  Chapman  v.  Gates,  54  N.  Y.  132,  500. 

145.  s State  „_  McCauley  (Wash.,  1897), 

8  State  v.  Penny,  70  Iowa  190.  49  Pac.  Rep.  221. 


§  43  PRIMARY    EVIDENCE.  53 

disputed,  they  can  not  be  shown  orally,  or  by  a  copy,  until  the 
absence  of  the  original  is  accounted  for.  So,  where  in  a  criminal 
prosecution  based  on  a  violation  of  a  statute,  or  city  ordinance, 
it  is  necessary  to  prove  the  existence,  or  contents,  of  the  statute, 
or  by-law,  it  can  not  be  done  by  oral  evidence.1  It  has  been 
found,  as  matter  of  observation,  that  the  memory  is  extremely  un- 
reliable. Aside  from  any  temptation  to  commit  perjury,  to  avoid 
which  this  rule  has  been  adopted,  but  which  would  always  be 
present  if  the  language  of  disputed  instruments  were  allowed 
to  be  shown  by  oral  evidence,  the  court  has  a  right  to  see  the 
whole  document,  in  its  entirety.  Where  a  witness  is  cross- 
examined  on  the  contents  of  a  letter,  which  he  is  alleged  to 
have  written,  for  the  purpose  of  impeaching  him,  by  proving 
prior  contradictory  statements  therein,  the  letter  itself  must 
first  be  read  to  him,  and  he  must  be  asked  if  he  has  written  it.2 
It  is  not  proper  to  read  a  portion  of  it,  or  to  incorporate  a  part, 
or  all  of  it  in  a  question,  and  to  ask  him  if  he  wrote  a  letter  to 
that  effect.  So,  where  a  witness  is  examined  under  a  commis- 
sion, and,  in  reply  to  an  interrogatory,  gives  the  contents  of  a 
letter  without  producing  it,  the  answer  will  be  stricken  out,  if 
there  is  no  method  of  obtaining  the  letter.3 

An  allegation  of  forgery  suggests  by  implication  the  exist- 
ence of  a  forged  paper  which  must  be  produced,  as  the  best 
evidence  of  the  fact  of  forgery,  or  accounted  for,  even  where 
the  forgery  is  attempted  to  be  proved  solely  for  the  purpose  of 
showing  a  criminal  intent.4  The  erroneous  admission  of  parol 
evidence  of  the  contents  of  a  missing  writing  is  cured  by  its 
subsequent  production,5  by  the  party  claiming  under  it,  or  by 
his  adversary.6 

A  copy  of  a  writing  may  be  received  to  prove  the  original 
upon  condition  that  its  correctness  shall  subsequently  be  made 

1  See  Tiedeman  on  Municipal  Corp.,  4  State  v.  Breckenridge,  67  Iowa  204, 

p.  264,  note  5;    Underhill  on  Evid.,  206.     See  post,  §§  423,  427. 

§§   32,    143a,    for    mode    of    proving  5  State  v.  King,  81  Iowa  587,  47  N. 

ordinances  and  statutes.  W.  Rep.  775,  776. 

2 Underhill  on  Evid.,  §350.  6  Glover  v.  Thomas,   75  Tex.  506; 

8 Peck  v.  Parchen,  52  Iowa  46;  State  Stewart  v.  DeLoach,  86  Ga.  729. 
v.  Mathews,  88  Mo.  121,  125,  126. 


54  CRIMINAL    EVIDENCE.  §  44 

to  appear,  and  the  impropriety,  if  any,  of  receiving  such  a  copy 
is  cured  by  showing  that  it  is  a  true  and  correct  copy. 

§  44.  Primary  evidence  of  collateral  facts. — Wherever  the 
facts  in  issue  are  not  the  reciprocal  rights  and  duties  of  the 
parties  under  a  writing,  but  some  fact  collateral  to  its  contents, 
its  production  is  not  required  as  primary  evidence  of  that  col- 
lateral fact.  The  fact  may  be  proved  by  parol,  for,  if  oral 
evidence  is  as  near  the  fact  to  be  proved  as  the  writing,  both 
are  primary  evidence.1 

Accordingly  the  oral  evidence  of  prison  or  jail  officials  is 
admissible  to  prove  that  prisoners,  whom  the  accused  had 
visited  in  jail,  were  imprisoned  for  crimes  similar  to  that  with 
which  he  is  charged.  The  fact  of  their  conviction  of  that 
crime  being  collateral  to  the  issue  of  his  guilt  may  be  proved 
orally.2  The  arrest  of  the  accused  on  a  charge  other  than  that 
for  which  he  is  on  trial  may  be  proved  by  parol.3  The  testi- 
mony of  an  officer  who  made  the  arrest  is  primary  evidence  of 
that  fact,  though  the  loss  of  a  book  in  which  it  was  recorded  is 
not  shown. 

Generally  when  the  contents  of  a  letter  or  telegram  are  es- 
sential to  determine  the  rights  of  the  parties,  it  must  be  pro- 
duced.4 But  if  the  sole  fact  to  be  proved  is  that  a  letter  or 
telegram  was  sent  or  received,  the  writing  need  not  be  pro- 
duced.5 

1  The  owner  of  real  or  personal  prop-  2Long  v.  State,  10  Tex.  App.  186, 

erty  will  not  be  required  to  produce  a  198. 

writing  by  which  his  title  vested,  but  s  State  v.  McFarlain,  42  La.  An.  803, 

may  testify  orally  to  the  fact  of  owner-  806.     See  post,  §§  60,  246. 

ship   where    that    fact  is   collateral.  4  The  oral  testimony  of  a  jailer  to 

That  a  certain  person  was  a  tenant  the  contents  of  letters  sent  or  received 

may  be  proved  orally  by  showing  he  by  a  prisoner  while  in  jail  is  inadmis- 

paid  rent,  though  a  written  lease  ex-  sible  until  their  non-production  is  ac- 

ists.     Rex  v.  Inhabitants,  7  B.  &  C.  counted  for.     McAfee  v.  State,  85  Ga. 

611,614,  1  Man.  &Ry.  146;  but  the  con-  438. 

tents  of  the  lease,  the  names  of  the  5  Conner  v.  State,  23  Tex.  App.  378, 

parties  and  the  terms  of  the  tenancy  385 ;  Holcombe  v.  State,  28  Ga.  66,  67. 

can  be  proved  only  by  the  lease  itself .  The  fact  that  the  prosecutrix    in   a 

Strother  v.  Barr,  5  Bing.  136,  139, 145,  trial  for  seduction  made  an  assigna- 

152 ;  Doe  v.  Harvey,  8  Bing.  239 ;  Rex  tion  by  a  letter  may  be  proved  orally 

v.  Merthyr  Tidvil,  1  B.  &  Ad.  29,  31.  though  the  letter  is  not  forth-coming. 


§  44  PRIMARY    EVIDENCE.  55 

So  payment  may  be  shown  by  oral  evidence  of  a  tender  and 
acceptance,  though  a  receipt  in  writing  has  been  given,  while 
an  oral  demand  may  be  proved  though  a  written  demand  may 
have  been  made.1  Where  the  receiver  of  a  telegraphic  dispatch 
is  the  employer  of  the  company,  the  writing  delivered  to  the 
company's  operator  by  the  sender  is  the  original.  But  where 
the  company  is  the  agent,  not  of  the  receiver  but  of  the  sender 
of  the  dispatch,  the  written  message  which  is  delivered  to  the 
addressee  is  the  original.2 

A  certificate,  parish  register,  transcript  of  a  public  record  or 
other  public  writing  is  not  necessarily  primary  evidence  of  the 
existence  of  the  marriage  relation,  even  when  it  has  been  de- 
clared by  law  to  be  presumptive  evidence.3  As  a  general  rule, 
and  though  a  certificate  which  is  known  to  exist  is  not  pro- 
duced, the  fact  of  a  marriage  having  been  solemnized  may  be 
proved  by  other  evidence,  even  in  criminal  trials.  The  per- 
formance of  a  marriage  ceremony  may  be  shown  by  the  evi- 
dence of  witnesses  who  were  present,  and  sometimes  by  the 
declarations  or  admissions  of  the  accused.  The  evidence  of 
such  witnesses  is  not  secondary  to  that  furnished  by  the  writ- 
ing. But  usually  greater  cogency  of  evidence  to  prove  mar- 
riage is  required  in  a  criminal  trial  than  will  be  demanded  in  a 
civil  proceeding.4 

Where  a  writing  has  no  direct  bearing  upon  a  material  point 
in  issue,  or  relevancy  to  it,  but  is  only  evidence  of  a  collateral 
fact,  or  so  far  as  it  is  evidence  of  a  collateral  fact,  no  objection 
exists  to  oral  evidence  to  prove  a  fact  contained  in  it.5 


State  v.  Ferguson,  107  N.  Car.  841,  846,  has  admitted   he  sent  the  telegram 

847.     The  presence  of  a  document  dur-  without  accounting  for  the  absence  of 

ing  an  interview  may  be  shown  orally  the    original    message.       Dunbar    v. 

without  accounting  for  its   absence.  United  States,  156  U.S.  185,  195. 

Tatum  v.  State,  82  Ala.  5,  8.  3  Com.  v.  Dill.  156  Mass.  226,  228. 

1  Smith  v.  Young,  1  Campb.  N.  P.  4  See  Underbill  on  Evid.,  §§  114,  144, 

439.  and  post,  §§  383,  403-405. 

8  State  v.  Gritzner,  134  Mo.  512,  36  S.  5  For  example,  a  writing  is  not  indis- 

W.  Rep.  39;  Utley  v.  Donaldson,  94  pensable  to  prove  the  nationality  of  a 

U.  S.  29.    See  cases,  Underhill  on  Ev.,  ship,    where    that    fact  is   collateral 

§  34.     A  typewritten  copy  of  a  tele-  merely.    United   States  v.   Pirates,  5 

gram  is  admissible  if  the  defendant  Wheat  (U.  S.)  184. 


56  CRIMINAL    EVIDENCE.  §  45 

So,  a  written  report  of  an  incident  made  by  a  witness  as  part 
of  his  duty  need  not  be  produced  or  accounted  for  to  render 
his  oral  testimony  admissible.  Thus,  a  jailer  may  state  orally 
that  a  prisoner  admitted  he  was  married,  though  this  fact  was 
also  entered  on  the  prison  books.1 

§  45.   Exceptions  in  the  case  of  proving  general  results. — To 

prevent  the  time  of  the  court  from  being  unduly  occupied  in 
the  examination  of  numerous  and  bulky  books  of  account  and 
other  writings  to  prove  a  single  fact,  the  production  of  the 
writings  may  be  dispensed  with  and  a  witness,  who  has  ex- 
amined the  documents,  may  state  orally  the  result  of  the  exami- 
nation which  he  has  made  out  of  court.  This  rule  is  applica- 
ble only  where  the  books  are  multifarious  and  voluminous, 
and  the  jury  would  find*  it  difficult,  if  not  impossible,  to  ascer- 
tain anything  material  from  their  inspection.  If  the  general 
result  is  stated  in  writing,  it  must  be  verified  by  the  party  who 
abstracted  it,  and  the  adverse  party  must  be  given  a  fair 
opportunity  to  examine  the  originals.2  In  such  cases,  it  should 
be  remarked,  the  witness  is  not  required  to  prove  the  contents 
of  the  writing.  He  is  merely  asked  to  give  primary  evidence 
of  a  fact  within  his  personal  knowledge,  which  he  has  acquired 
through  the  employment  of  his  own  powers  of  observation. 
So,  in  a  prosecution  for  embezzlement,  an  expert  who  has 
examined  the  books  of  account  kept  by  the  prisoner  may  testify 
that  a  certain  balance  is  due  therein.3 

If  the  issue  of  insolvency  is  involved  the  general  result  of 
an  examination  of  the  debtor's  accounts  and  securities  may  be 
stated  without  producing  them.4     A  witness  will  not  be  allowed 

'Com.  v.  Walker,  163  Mass.  226,  39  not  be  proved  orally,  when  the  slips 

N.  E.  Kep.  1014.     If  the  writing  is  one  used  were  missing, 

that  it  is  customarily    destroyed   as  2  Boston,  etc.,  Co.  v.  Dana,  1  Gray 

soon  as  used,  it  would  not  seem  log-  (Mass.)  83,  104. 

ical,  or  fair,  to  require  its  production  3  See  post,  §  290. 

if  its  contents  could  be  proved  orally.  4  Culver  v.  Marks,  122  Ind.  554,  566, 

But  it  was  held  in  State  v.  De  Wolf,  8  567.    That  the  rules  of  the  text  are 

Conn.   93,   that  the   admissions  of  a  applicable  to  criminal    prosecutions, 

deaf  mute,  written  on  slips  used  by  see  Hollingsworth  v.  State,  111  Ind. 

him  in  conversing  with  others,  could  289,  297. 


§  46  PRIMARY    EVIDENCE.  57 

to  testify  to  a  single  fact  not  in  the  nature  of  a  general  result, 
if  he  has  learned  it  solely  from  inspecting  books,  if  they  are 
not  produced.1 

The  oral  testimony  of  one  who  has  examined  public  records 
that  he  did  not  find  a  certain  fact  or  name,  which  was  by 
statute  required  to  be  recorded,  is  proof  only  that  a  search  was 
made  and  that  it  was  unsuccessful.  It  may  go  to  the  jury  as 
primary,  though  slight,  evidence,  that  the  name  or  fact  was  in 
fact  not  recorded.2 

§  46.  Proof  of  records  and  official  appointments. — Public 
records,  because  of  their  official  character  and  the  general  in- 
convenience which  would  always  ensue  if  their  removal  from 
the  proper  custody  was  permitted,  may  usually  be  proved  by 
a  duly  authenticated  copy  or  transcript,  without  accounting 
for  the  absence  of  the  original  records.3  The  later  cases,  under 
the  influence  of  statutory  legislation,  have  somewhat  extended 
the  rule.  It  is  often  applied  to  the  books  of  private  corpora- 
tions when  it  is  very  inconvenient  to  produce  them,  but  only 
after  a  reasonable  effort  to  obtain  possession  of  the  original 
has  been  proved.4 

Where  a  statutory  mode  of  proving  a  record  by  a  certified 
copy  is  provided,  the  copy  is  the  best  evidence  of  the  record, 
and  the  latter  can  not  be  proved  by  parol.  But  where  the 
records  are  shown  to  be  lost,  so  that  a  certified  copy  is  unob- 
tainable, the  loss  and  their  contents  may  be  shown  by  the  tes- 
timony of  any  person  having  actual  knowledge. 

Another  exception  to  the  rule  requiring  the  production  of  a 
writing  as  the  best  evidence  occurs  where  a  party  is  called  upon 
to  prove  the  validity  of  the  appointment  of  some  public  of- 

1  Hamilton,  etc.,  Soc.v.  North  wood,  53,55.  But  as  regards  the  weight  of 
86  Mich.  315,  49  N.  W.  Rep.  37.  Offi-  such  evidence,  a  copy  of  a  public  rec- 
cials  who  have  examined  books  and  ord  must  prevail  over  the  oral  testi- 
accounts  kept  by  the  accused  may  tes-  mony  of  a  person  who,  after  examin- 
tify  to  the  balance  found  against  the  ing  the  record,  testifies  that  he  can  not 
defendant.  Woodruff  v.  State,  61  Ark.  find  the  part  certified.  Boyce  v.  Audi- 
157,  32  S.  W.  R.  102.  tor  General,  90  Mich.  314,  321. 

2  People  v.  Jones,  106  N.  Y.  523, 526.  3  Underbill  on  Evid.,  §  142c,  et  seq. 
Contra,   Hepler  v.  State,  58  Wis.  46,  4  Underbill  on  Evid.,  142a. 


58  CRIMINAL    EVIDENCE.  §  47 

ficial.  The  written  appointment  of  the  officer  need  not  gen- 
erally be  produced.  From  proof  that  the  public  official  has 
acted  openly  as  such  it  will  be  presumed,  that  is,  in  collateral 
proceedings  not  involving  his  title  to  the  office,  that  he  was 
legally  and  properly  appointed.  Thus  in  a  criminal  prosecu- 
tion for  assaulting  or  resisting  a  police  officer,  written  evidence 
of  his  appointment  or  of  his  authority  to  act  is  never  neces- 
sary, nor  need  its  absence  be  accounted  for.1 

§  47.  Physical  condition  of  personal  property. — The  testi- 
mony of  a  witness  who  has  personal  knowledge  of  the  physical 
condition  or  attributes  of  an  article  of  personal  property  ob- 
tained by  the  employment  of  any  of  his  senses  is  primary  evi- 
dence of  its  character  and  condition.  The  article  itself  need 
not  be  produced.  Thus  a  witness  may  state  that  he  saw  blood 
stains  upon  a  person's  clothing,2  or  that  a  certain  liquor  which 
he  saw  was  intoxicating,3  without  producing  the  clothing  or  the 
liquor. 

But  ah  article  of  personal  property,  the  relevancy  of  which 
has  been  shown  by  its  identification  with  the  subject-matter  of 
the  crime,  may  be  exhibited  to  the  jury  in  the  court  room, 
either  as  direct  evidence  of  a  relevant  fact,  or  to  enable  them 
to  understand  the  evidence  or  to  realize  more  completely  its 
cogency  and  force.4 

1  Gordon's  Case,  2  Leach  C.  Law  tity,  based  on  the  same  principles  that 
(1789)  581,  585;  Martin  v.  State,  89  aid  him  in  determining  whether  a 
Ala.  115, 118, 119 ;  North  v.  People,  139  knife  or  a  hat  is  his  own.  Mitchell  v. 
111.  81,  28  N.  E.  Eep.  966,  971 ;  Com.  v.  State,  94  Ala.  68, 10  So.  Rep.  518,  520. 
McCue,  82  Mass.  226 ;  State  v.  Row,  81  So  one  witness  may  testify  to  the  fact 
Iowa  138,  46  N.  W.  Rep.  872;  State  v.  that  another  identified  an  article  on  a 
Smith,  38  La.  An.  301;  Com.  v.  Kane,  prior  occasion.  State  v.  Brabham,  108 
108  Mass.  423;  State  v.  Surles,  117  N.  N.  Car.  793,  13  S.  E.  Rep.  217.  In 
Car.  720,23  S.  E.  Rep.  324;  Shely  v.  Gindrat  v.  People,  138  111.  103,  108- 
State  (Tex.,  1896),  32  S.  W.  Rep.  901.  110,  27  N.  E.  Rep.  1085,  which  was 
See  post,  §446.  an   indictment  for    the  larceny  of  a 

2  Com.  v.  Pope,  103  Mass.  440;  diamond  ring  by  substituting  an  imi- 
Campbell  v.  State,  23  Ala.  44,  69,  72.  tation  ring  in  the  place  of  one  con- 

3  Com.  v.  Welch,  142  Mass.  473;  tained  in  a  tray  which  the  prisoner 
Com.  v.  Moineham,  140  Mass.  463.  had  examined,   the  prosecution  was 

4  The  witness,  it  seems,  need  not  allowed  to  put  other  imitation  rings  in 
identify  the  article  positively.  He  evidence  which  had  been  found  in 
may  testify  to  his  belief  in  its  iden- 


§  48  PRIMARY    EVIDENCE.  59 

Comparison  of  materials  may  also  be  made  by  the  jury,  aided 
by  the  evidence  of  expert  witnesses.  So  in  case  the  quality  of 
an  article,  or  its  adaptability  to  a  specific  use  or  purpose,  is  in 
issue,  a  sample  may  be  shown  to  the  jury,  together  with  a 
specimen  of  a  like  material  which  is  shown  to  be  of  good  qual- 
ity or  adapted  to  the  required  purpose,  and  the  jury  may  then 
make  a  comparison  to  ascertain  possible   points  of  difference.1 

As  a  general  rule,  it  seems  essential  that  articles  shown  to 
the  jury  should  be  connected,  at  least  prima  facie,  with  the 
crime  in  issue.2  Indeed,  the  propriety  and  justice  of  permitting 
articles  and  implements,  such  as  deadly  weapons,  lanterns, 
masks,  counterfeiters'  tools,  gambling  apparatus  and  the  like, 
used  by  criminals,  but  which  are  not  shown  to  be  connected 
with  the  accused,  to  be  exhibited  to  the  jury  may  well  be 
doubted.  Such  a  practice,  under  the  pretext  of  illustrating  or 
explaining  the  evidence,  is  well  calculated  to  prejudice  the 
jury  against  him. 

§  48.    Incriminating   articles — Weapons,    clothing,  etc. — A 

district  attorney  has  been  permitted  to  show  the  jury  an  in- 
strument with  which  an  abortion  had  been  procured,3  or  a 
pistol,  or  any  weapon,  article,  or  instrument  with  which  a 
homicide,  assault,  or  other  crime  has  been  committed.  A  wit- 
ness will,  also,  be  allowed  to  show  how  it  could  have  been 
used.4 

The  clothing  of  the  victim  of  a  homicide,  if  properly  identi- 
fied, may  be  exhibited,  on  the  principle  that  it  is  a  part  of  the 
res  gestae,  to  illustrate  to  the  jury  the  character  and  nature  of 

a  room  occupied  by  the   accused  by  State,  32  Tex.  Crim.  R.  259,  22  S.  W. 

an  officer  who  had  broken   into  the  Rep.  978;  Hornsby  v.  State,  94  Ala.  55, 

room   and  searched   it   without    any  64;  Stater.  Crow,  107  Mo.  341, 17 S.W. 

warrant.  Rep.  745,  747 ;  State  v.  Mordecai,  68  N. 

People  v.  Buddensieck,  103  N.  Y.  Car  207;  Gardiner?'.  People, 6  Park Cr. 

487.  Rep.  (N.Y.)  155, 157.    A  watch  charm 

2  But  see  Underbill  on  Evid.,  §  39.  taken  from  the  person  of  a  man  who 

8  Com.  v.  Brown,  14  Gray  419.  had    been    killed    by   the  defendant 

4  See,  generally,  State  v.  Roberts,  63  while  perpetrating  a  robbery  was  re- 

Vt.  139,  142;  Siberry  v.  State,  133  Ind.  ceived    in    evidence    in     Goldsby    v. 

677,  33  N.  E.  Rep.  681 ;  Roderiquez  v.  United  States,  160  U.  S.  70. 


60 


CRIMINAL    EVIDENCE. 


§49 


the  wounds,1  the  motive  of  the  crime,  the  manner  and  means 
of  death,2  or  to  show  how  near  the  accused  was  to  him,  when 
he  was  slain.8 

In  a  homicide  trial,  the  skull  or  vertebra  of  the  deceased,  if 
properly  identified,4  may  be  submitted  to  the  inspection  of  the 
jury,  to  show  the  character  and  location  of  the  wounds  in- 
flicted. Such  a  course  is  not  prejudicial  to  the  accused  upon 
the  grounds  that  it  is  calculated  to  excite  feelings  of  horror  in 
the  minds  of  the  jurors.5  The  clothing  of  the  defendant  may 
be  exhibited  to  the  jury  to  show  that  spots  found  thereon  are 
blood  stains,  or  for  other  purposes,  though  the  article  itself 
may  have  been  procured  from  him  without  his  knowledge  of 
the  purpose  for  which  it  was  to  be  used.6 

Incriminating  articles  may,  if  relevant,  be  used  as  evidence 
against  the  accused,  though  forcibly,  irregularly,  or  illegally 
taken  out  of  his  possession.7  Nor  does  a  constitutional  enact- 
ment, providing  that  no  one  shall  be  compelled  to  testify  against 
himself,  prevent  such  a  use  of  garments  or  other  articles  taken 
from  the  prisoner.8 

§49.  Inscriptions  on  bulky  articles. — From  the  inconveni- 
ence  which   would   ensue   if   their  actual  production  in  court 


1  Dorsey  v.  State,  110  Ala.  38, 18  So. 
Rep.  199;  People  v.  Knapp,  71  Cal. 
1,  3. 

2  Story  v.  State,  99  Ind.  413,  414; 
McDonelw.  State,  90  Ind.  320;  State 
v.  Cadotte,  17  Mont.  315 ;  Hart  v.  State, 
15  Tex.  App.  202,  229,  230. 

'People  v.  Wright,  89  Mich.  70,  50 
N.  W.  Rep.  792 ;  Watkins  v.  State,  89 
Ala.  82 ;  Frizzell  v.  State,  30  Tex.  App. 
42;  Levy  v.  State,  28  Tex.  App.  203. 
The  use  of  a  dressmaker's  frame  in 
court  for  convenience  in  exhibiting  to 
the  jury  the  clothing  of  the  deceased 
is  permissible.  So,  where  certain  tools 
which  were  claimed  by  the  defendant 
to  fit  in  marks  on  a  door  were  intro- 
duced in  evidence  by  him,  the  state 
was  allowed  to  introduced  the  door  to 


prove  that  the  tools  did  not  fit.  People 
v.  Durrant  (Cal.,  1897),  48  Pac.  R.  75. 

4  State  v.  Moxley,  102  Mo.  374,  388. 

s  Turner  v.  State,  89  Tenn.  547,  564, 
565. 

6 State  v.  Baker,  33  W.  Va.  319,  331, 
334.  Nor  should  articles  of  personal 
property  be  rejected  as  evidence,  be- 
cause they  can  not  be  filed  with  the 
bill  of  exceptions.  State  v.  Stair,  87 
Mo.  268.     Underhill  on  Evid.,  §  39. 

TCom.  v.  Tibbetts,  157  Mass.  519,  32 
N.  E.  Rep.  910;  State  v.  Griswold,  67 
Conn.  290,  34  Atl.  Rep.  1046 ;  Siebert  v. 
People,  143  111.  571,  582;  Com.  v. 
Smith,  166  Mass.  370,  44  N.  E.  Rep. 
503.  Cf.  People  v.  Gardner,  144  N.  Y. 
119,  128. 

8  Drake  v.  State,  75  Ga.  413,415; 
State  v.  Ah  Chuey,  14  Nev.  79,  83. 


§  50  PRIMARY    EVIDENCE.  61 

were  required,  the  rule  has  long  been  recognized  that  monu- 
ments, natural  or  artificial,  used  to  mark  the  boundaries  of 
land,  sign-boards,1  mural  tablets,  gravestones  and  similar 
bulky  articles,  need  not  be  produced  for  the  purpose  of  prov- 
ing inscriptions  on  them.  The  inscriptions  may  be  proved  by 
the  evidence  of  a  witness  who  has  read  them.  So  the  oral 
testimony  of  a  surveyor  is  admissible  to  describe  the  monu- 
ments which  constitute  and  mark  out  a  boundary  line,2  and, 
from  necessity,  to  prove  the  marks  which  were  blazed  upon 
the  trees  near  the  same.3  An  invoice  is  competent  to  prove 
the  marks  upon  cases  of  merchandise  described  in  it.* 

Upon  the  same  grounds  and  because  of  the  general  notoriety 
of  the  facts  involved,  oral  evidence  of  the  contents  of  resolu- 
tions passed  at  public  meetings,  and  of  inscriptions  on  flags  or 
banners  carried  in  public  parades,  has  always  been  admitted.5 

As  regards  unrecorded  brands  and  marks  upon  cattle,  one 
who  has  seen  them  may  testify  to  their  existence,6  and  may 
explain  their  character  and  meaning.7  And  in  a  prosecution 
for  the  unlawful  sale  of  liquors,  the  names  of  the  liquors 
marked  on  the  bottles  and  other  vessels  may  be  proved  with- 
out producing  the  vessels  or  labels.* 

The  contents  of  a  writing  may  be  proved  orally  where  the 
identity  of  an  article  to  which  it  was  attached  is  relevant. 
Thus,  a  witness  may  state  orally  what  was  on  a  tag,'  or  a  label,10 
which  was  affixed  to  a  bag,  or  a  package,  without  producing 
the  writing.11 

§  50.   Photographs  as  primary  evidence — Personal  identity. 

— Photographs,  whether  originals  or  copies,12  are  admissible  as 

1  State  v.  Wilson,  5  R.  I.  291.  7  Boren  v.  State,  23  Tex.  App.  28,  S3, 

2  Borer  v.  Lange,  44  Minn.  281,  286.       4  S.  W.  Rep.  463. 

8  Ayers  v.  Watson,  137  U.  S.  584, 600.  8  Com.  v.  Blood,  11  Gray  74. 

4Taylor  v.   United  States,  3  How.  9Com.  v.  Morrell,  99  Mass.  542. 

(U.  S.)  197,  208.  10Com.  v.  Powers,  116  Mass.  337, 338. 

5  Sheridan's  Case,  31  How.  St.  "  A  witness  may  testify  to  certain 
Trials  543,  672.  marks  which  he  saw  upon  the  cloth- 

6  State  v.  Cardelli,  19  Nev.  319;  Peo-  ingworn  by  the  accused.  Com  v.  Hills, 
pie  v.  Bolanger,  71  Cal.  17;  Brooks  v.  64  Mass.  530,  533. 

People  (Colo.,  1897),  48  Pac.  Rep.  502.        12  Wilcox  v.  Wilcox,  46  Hun  32. 


62 


CRIMINAL    EVIDENCE. 


§50 


primary  evidence  upon  the  same  grounds  and  for  the  same  pur- 
poses as  are  diagrams,  maps,1  and  drawings  of  objects  or  places. 
Photographs  have  been  received  for  the  purpose  of  describing 
and  identifying  premises  which  were  the  scene  of  a  crime,2 
and  they  need  not  show  all  the  premises  if  they  show  the  ma- 
terial part.3 

Photographs  are  admissible  as  primary  evidence  of  the  iden- 
tity of  persons  alive  or  dead,4  and  to  present  delineations  of 
wounds  or  other  physical  injuries,5  as,  for  example,  to  show 
that  a  child  had  been  insufficiently  fed  or  ill-treated.6 

So  photographs  of  the  bodies  of  drowned  persons  have  been 
received  for  purposes  of  identification  even  when  the  bodies 
had  remained  in  the  water  for  a  very  long  time,  and  the  like- 
ness, because  of  this  and  of  the  disadvantageous  circumstances 
under  which  it  was  made,  was  bad.7 

Photographs  are  sometimes  received  to  supply  accurate  fac- 
similes of  public  records  which  can  not  be  conveniently  brought 
into  court,8  and  enlarged  photographs  of  disputed  writings  emL 
phasizing,  illustrating  and  making  prominent  peculiarities  of 


1  Adams  v.  State,  28  Fla.  511. 

2  People  v.  Pustolka,  149  N.  Y.  570, 
43  N.  E.  R.  548;  State  v.  Kelley,  46  S. 
Car.  55,  24  S.  E.  R.  60;  State  v.  O'Reil- 
ly, 126  Mo.  597. 

3  Chestnut  Hill,  etc.,  Co.  v.  Piper, 
etc.,  Co.,  15  Weekly  Notes,  55.  "It 
(the  photograph)  exhibited  the  sur- 
face, condition  and  state  of  the  wall, 
and  it  no  doubt  carried  to  the  minds 
of  the  jurors  a  better  image  of  the 
subject-matter  concerning  which  neg- 
ligence was  charged,  than  any  oral 
description  by  an  eye-witness  could 
have  done.  In  such  a  case  it  must  be 
deemed  established  that  photographic 
scenes  are  admissible  in  evidence  as 
appropriate  aids  to  a  jury  in  applying 
the  evidence,  whether  it  relates  to 
persons,  things  or  places."  People  v. 
Buddensieck,  103  N.  Y.  487,  500. 

4 People  v.  Durrant  (Cal.,  1897),  48 
Pac.    Rep.    75;     Wilson    v.    United 


States,  162  U.  S.  613;  People  v.  Smith, 
121  N.  Y.  578,  582;  Udderzook  v. 
Com.,  76  Pa.  St.  340,  352,  353;  Ruloff 
v.  People,  45  N.  Y.  213,  224;  Beavers 
v.  State,  58  Ind.  530 ;  Marion  v.  State, 
20  Neb.  233,  240;  Luke  v.  Calhoun  Co., 
52  Ala.  115,  118,  119;  State  v.  McCoy 
(Utah,  1897),  49  Pac.  Rep.  420. 

5  Franklin  v.  State,  69  Ga.  36,  42. 

6  Cowley  v.  People,  83  N.  Y.  464, 
476-478. 

7  Ruloff  v.  People,  45  N.  Y.  213,  224. 
A  witness  who  found  a  mutilated 
body  of  a  man  whom  he  had  never 
seen  alive,  which  had  been  buried 
several  days,  was  allowed  to  testify 
that  the  face,  though  swollen  and 
discolored,  resembled  a  photograph 
shown  him.  Udderzook  v.  Com.,  76 
Pa.  St.  340. 

8  Leathers  v  .  Salvar  Wrecking  Co., 
2  Woods  680,  682;  Luco  v.  United 
States,  23  How.  (U.  S.)  515,  541. 


§  51  PRIMARY    EVIDENCE.  63 

handwriting  have  been  employed  by  experts  as  standards  of 
comparison.1 

§  51.  Accuracy  and  relevancy  of  photographs. — If  the  cor- 
rectness of  the  photograph  as  a  likeness  is  shown  prima  facie, 
either  by  the  testimony  of  the  person  who  made  it  or  by  other 
competent  witnesses,  to  the  effect  that  it  faithfully  represents 
the  object  portrayed,  it  should  go  to  the  jury  subject  to  im- 
peachment.2 Whether  the  photograph  is  an  accurate  likeness 
is  then  a  question  for  the  jury. 

A  conflict  of  evidence  regarding  the  correctness  of  a  photo- 
graph does  not  exclude  it,  if  it  is  relevant.  It  should  go  to  the 
jury,  and  the  other  side  may  be  allowed  to  introduce  one  they 
deem  to  be  correct.3  It  may  not  always  be  necessary  to  show 
the  correctness  of  the  portrait  by  affirmative  evidence.  In  the 
absence  of  any  attack  upon  the  correctness  of  the  likeness,  the 
court  may  assume  it  to  be  correct  from  the  universal  employ- 
ment of  the  art,  the  general  assent  to  the  correctness  of  its 
delineations  and  the  scientific  principles  on  which  they  are 
based.4 

The  photograph  or  picture  must  be  relevant  as  well  as  cor- 
rect. Its  relevancy  will  depend  on  the  relevancy  of  the  scene 
or  object  it  represents.  If  a  photograph  purports  to  represent 
a  relevant  scene  or  object,  but  portrays  it  in  a  grossly  inaccu- 
rate manner,  so  that  it  practically  represents  something  else, 
and  the  scene  or  object  would  scarcely  be  recognized  thereby, 
the  non-reliability  of  the  photograph  as  a  correct  likeness  may 
almost  be  considered  as  producing  irrelevancy.  But  usually 
the  question  of  relevancy  is  distinct  from  that  of  correctness, 
and  is  for  the  judge  exclusively.  It  is  to  be  determined  upon 
the  considerations   which  govern  when  the  relevancy  of  any 

1Rowell  v.  Fuller,  59  Vt.  688;  Bu-  graph  correct?"  though  leading,  may 

zard  v.  McAnulty,  77  Tex.  438;  Marcy  be   put    to    the    witness.       Stuart  v. 

v.  Barnes,  16  Gray  161.  Binsse,  10  Bosw.  (N.  Y.)  436. 

2  People  v.  Durrant  (Cal.,  1897),  48  s  Moon  v.  State,  68  Ga.  687,  695. 

Pac.   Rep.   75;  Com.  v.  Switzer,  134  4  Udderzook  v.  Com.,  76  Pa.  St.  340, 

Pa.  St.  383;  Ming  v.  Foote,  9  Mont.  352,   353;    Lake  v.   Calhoun   Co.,   52 

201.     The  question,    "Is   this   photo-  Ala.  115,  119. 


64  CRIMINAL    EVIDENCE.  §  52 

sort  of  evidence  is  concerned.1  Stationing  men  about  the 
scene  to  be  depicted  to  show  the  positions  occupied  by  persons 
present  when  the  crime  was  committed,  and  to  aid  the  recollec- 
tion of  a  witness,2  or  the  fact  that  a  change  had  been  made  in 
the  edifice  which  was  photographed,  will  not  render  the  photo- 
graph irrelevant  if  the  change  is  not  too  material.8  If,  how- 
ever, the  photograph  was  taken  so  long  after  the  commission 
of  the  crime  that  material  changes  may  have  taken  place  it 
should  be  rejected,  unless  it  is  affirmatively  shown  that  no 
material  change  had  occurred.4 

The  photograph  to  be  received  need  not,  as  a  rule,  have 
been  taken  by  a  professional  photographer.5  But  in  one  in- 
stance a  photograph  by  an  amateur  was  rejected,  partly  for  the 
reason  that  he  was  utterly  unfamiliar  with  the  locality.6 

§52.  Paintings  and  drawings.  —  Pencil  and  pen-and-ink 
drawings  have  been  received  to  identify  or  explain  localities. 
Though  they  are  received  as  primary  evidence  appealing  to  the 
eyes  of  the  jury  under  the  rule  admitting  photographs,  they 
differ  from  the  latter  in  that  their  accuracy  as  portraits  or  like- 
nesses must  be  affirmatively  shown  by  the  testimony  of  the 
artist  or  other  competent  witness.  There  is  no  presumption  of 
correctness  founded  on  general  use  and  employment,  or  on  their 
being  mechanical  reproductions  by  a  process  which  the  court 
will  judicially  notice,  as  exists  in  the  case  of  photographs. 
The  witness  called  to  prove  their  correctness  must  testify  of  his 
own  knowledge  that  they  faithfully  represent  the  object  depicted, 

JThe  photograph  of  the  accused  is  159  Mass.   375,   34  N.   E.   Rep.  458; 

especially  valuable    and  relevant  to  Com.  v.  Campbell,  155  Mass.  537. 

identify  him  when  it  was  taken  im-  2  People  v.  Jackson,  111  N.  Y.  362, 

mediately  prior  to  or  shortly  after  his  370. 

arrest,  if  the  other  evidence  of  his  per-  3  Glazier  v.  Hebron,   62  Hun  137; 

sonal  appearance  at  that  time  is  con-  Parshell  v.  Railroad  Co.,  66  Hun  633. 

tradictory  or  unconvincing,  or  if  he  4  Cleveland,  etc.,  Co.  v.  Monaghan, 

had  intentionally  changed  his  facial  140  111.  474,  483. 

appearance,  between  his  arrest  and  his  5  Duffin  v.  People,  107  111.  113. 

trial,  by  growing  or  removing  a  beard  6  Cleveland,  etc.,  Co.  v.  Monaghan, 

or    moustache.       State    v.    Ellwood,  140  111.  474,  483. 
17  R.  I.  763,  771;  Com.  v.  Morgan, 


§  53  PRIMARY    EVIDENCE.  65 

and  their  accuracy,  if   disputed,    is  a  question  for  the  jury, 
turning  upon  the  credibility  of  the  witnesses.1 

§  53.  "Real  evidence"  Inspection  by  jurors.— Real  evidence 
means  evidence  which  is  obtained  through  the  sight  by  the 
actual  inspection  of  a  person  or  thing  by  the  judge  or  jury  in 
open  court.2  The  subject  of  the  production  in  court  of  articles 
to  furnish  visual  proof  of  their  condition  is  considered  else- 
where in  this  volume.3  It  remains  to  consider  only  cases  where 
a  question  of  personal  identity,  resemblance  or  physical  condi- 
tion is  concerned.  The  question  is,  when  may  the  accused  be 
compelled  to  submit  to  an  examination  by  the  jurors?  Inspec- 
tion and  comparison  of  persons  by  the  jury  have  been  fre- 
quently allowed  where  race  or  color  was  in  issue.  This  is 
wholly  unobjectionable  if  the  accused  shall  consent  thereto,  or 
if  he  desires  to  introduce  the  evidence  in  his  own  behalf.4 
Whether  the  accused  can  be  compelled  to  exhibit  a  portion  of 
his  body  to  the  jury,  or  be  required  to  submit  to  a  general  physi- 
cal examination  by  them,  is  a  question  upon  which  a  diversity 
of  opinion  exists. 

Under  existing  constitutional  provisions,  an  accused  person 
can  not  be  compelled  to  testify  as  a  witness  against  himself. 
Hence  it  has  been  held  that  the  accused,  not  being  a  witness, 
could  not  be  compelled  to  stand  up  before  a  jury  in  order  that 
they  might  ascertain  from  inspection  to  what  race  he  belonged.5 

1  People  v.  Johnson,  140  N.  Y.  350, 35  from  the  jury  as  hearsay,  and  as  cal- 

N.  E.  Rep.  604;  Burton  v.  State,  107  culated  to  prejudice  the  prisoner. 

Ala.  180, 18  So.  Rep.  284.  The  question,  2  Gaunt  v.  State,  50  N.  J.  L.  490-495, 

what  effect  on  the  competency  of  pho-  citing  cases, 

tographs  taken  from  a  "  rogue's  gal-  3  §  47,  ante. 

lery,"  and  offered  solely  for  the  pur-  4  It  is  error  to  refuse  to  permit  the 

pose  of  identifying  the  accused,  certain  accused  to  place  his  physical  appear- 

indorsements  stating  the  persons  por-  ance  in  evidence  if  the  physical  char- 

trayed  were  criminals,  was  raised,  but  acteristics    are    such    as  can   not  be 

not  decided  in  People  v.  Smith,  121  manufactured  for  the  occasion,  as,  for 

N.  Y.  578,  582.     Tt  would  seem  that  example,  blindness,  lack  of  members, 

the    accusatory    and    derogatory    in-  or  his  color,  size  and  height.     Lipes 

dorsements,   while  not  keeping    out  v.  State,  15  Lea  (Tenn.)  125,  127. 

the  photographs,  ought  to  be  excluded  5  State  v.  Jacobs,  5  Jones  (N.C.)  259. 
5-Cr.  Ev. 


66  CRIMINAL    EVIDENCE.  §  53 

Whether  compulsory  inspection  of  the  accused  can  be  con- 
sidered to  infringe  the  constitutional  prohibition  that  he  shall 
not  be  compelled  to  testify  against  himself  depends  somewhat 
on  circumstances.  He  waives  it  by  going  on  the  stand  in  his 
own  behalf.  If  he  does  this,  he  must  then  submit  to  a  cross- 
examination  and  may  be  compelled  to  exhibit  a  part  of  his 
person  for  the  inspection  of  the  jurors.  Even  if  he  does  not  go 
upon  the  witness  stand  the  majority  of  the  cases  hold  that  jur- 
ors can  use  their  eyes  as  well  as  their  ears,  and,  recognizing 
the  difficulty  of  drawing  any  line  of  demarkation,  maintain 
the  rule  that  the  accused  may  be  required  to  submit  his  per- 
son or  any  part  of  it  to  the  jury  for  examination.1 

Where  the  accused,  on  refusing  to  obey  an  order  to  arise  in 
order  to  be  identified,  is  forcibly  compelled  to  stand  up,  it  has 
been  held  that  his  constitutional  rights  were  not  violated  nor 
was  he  compelled  to  give  evidence  against  himself,2  upon  the 
theory  that  there  was  nothing  in  the  mere  act  of  arising  or  in 
his  personal  appearance  which  necessarily  furnished  evidence 
against  him  or  connected  him  with  the  crime.  The  right  of  the 
accused  to  be  present  with  the  jury  in  court  creates  a  reciprocal 
duty  that  he  shall  remain  in  their  presence.  The  orderly  con- 
duct of  a  criminal  trial  requires  that  the  court  shall  have  full 
power  to  say  what  place  the  prisoner  shall  occupy,  when  he 
shall  sit  or  stand,  and  that  he  shall  remain  within  sight  of  the 
court  and  the  witnesses.  So  it  is  universally  admitted  that  if 
the  prisoner  shall  appear  in  a  mask,  or  veiled,  or  with  his  head 
covered,  the  court  may  order  him  to  uncover  his  features,  for 
without  this  exposure  it  would  not  be  certain  who  the  person 
really  was  who  assumed  to  be  the  prisoner.3 

The  information  obtainable  by  inspection  is  of  considerable 
value  when   the   issue  turns  upon  a  question  of  race  or  color 

1  State  v.  Ah  Chuey,  14  Nev.  79,  89;  less  he  is  also  a  witness.     Garvin  v. 

State  v.  Woodruff,  67  N.  Car.  89,  91 ;  State,  52  Miss.   207,   209.     See  cases 

State  v.  IJall,  79  Iowa  674,  44  N.  W.  cited,  p.  67„ n.  3. 

Rep.  914;  Garvin  v.  State,  52  Miss.  2  People  v.  Gardner,  144  N.  Y.  119, 

207,  209;  State  v.  Wieners,  66  Mo.  13.  127-129;  State  v.  Reasby  (Iowa,  1896), 

Contra,  Blackwell  v.  State,  67  Ga.  76,  69  N.  W.  R.  451. 

78,  79.     But  he  can  not  be  questioned  s  Rice  v.  Rice,  47  N.  J.  Eq.  559. 
while  under  visual  examination,  un- 


§  54  PRIMARY    EVIDENCE.  67 

because  of  the  marked  racial  characteristics  which  enable  any- 
one of  ordinary  intelligence  to  distinguish  between  persons 
of  different  races.  But,  evidence  of  identity,  race  or  age  thus 
obtained  does  not  possess  much  probative  force  because  of  the 
unreliability  of  the  untrained  faculties  of  human  observation. 
This  objection  can  not  be  urged  to  its  admissibility,  if  it  is 
relevant,  though  doubtless  affecting  its  credibility.1 

§  54.  Compelling  accused  to  submit  to  inspection  or  to  stand 
for  identification. — The  accused  can  not  object  if  he  is  identi- 
fied without  being  required  to  stand.2  So,  if  he  voluntarily 
stands  up  and  a  witness  identifies  him  without  objection,  he  can 
not  be  granted  a  new  trial  upon  the  ground  that  he  has  been 
compelled  to  testify  against  himself.3  The  accused  may,  when 
arrested,  be  subjected  to  a  compulsory  physical  examination  to 
ascertain  his  identity. 

A  witness  may  always  testify  to  the  physical  condition  of  the 
prisoner  when  his  condition  is  relevant.  He  may  state  what 
marks  he  saw  on  the  prisoner's  body,  whether  he  was  physic- 
ally deformed  in  any  way,  and  may  describe  his  general  per- 
sonal appearance  so  far  as  he  observed  it.  And  this  is  the  rule 
even  where  the  clothing  of  the  prisoner  is  forcibly  removed 

xThe  question  arises,  can  the  de-  and  behavior  of  the  accused  very 
meanor  and  conduct  of  the  prisoner,  closely  while  he  is  in  court  during 
his  manifestation  of  emotion  or  the  the  trial.  They  will  naturally  draw 
absence  of  it  during  the  trial,  but  not  inferences  therefrom  either  favorable 
while  he  is  on  the  witness  stand,  and  or  unfavorable  to  him.  The  informa- 
if  he  is  not  expressly  under  the  in-  tion  thus  obtained  is  evidence,  and, 
spection  of  the  jurors,  be  considered  doubtless,  many  a  verdict  has  been 
by  them  as  a  legitimate  source  of  evi-  determined  thereby.  While  wecoun- 
dence?  The  rule  that  the  conduct  of  tenance  the  modern  jury  system  and 
a  witness  may  be  regarded  in  estimat-  insist  upon  the  right  of  the  prisoner 
ing  his  credibility  has  no  application  to  remain  in  court  and  to  confront 
here,  for  the  credibility  of  the  accused  his  accusers,  we  can  not  close  the  eyes 
is  not  material  if  he  is  not  a  witness,  of  the  jurors.  See  article  in  15  Crim. 
and  his  demeanor  then  is  only  rele-  Law  Mag.,  p.  339. 
vant,  so  far  as  it  bears  directly  upon  2  State  v.  Johnson,  67  N.  Car.  55. 
the  crime,  by  showing  that  he  is  con-  3  Gallaher  v.  State,  28  Tex.  App. 
scions  of  his  guilt  or  the  reverse.  247,  12  S.  W.  Rep.  1087 ;  Rex  v.  Wat- 
Practically  it  is  impossible  to  prevent  son,  2  Stark.  116,  128;  People  v.  Gold- 
jurors  from  observing  the  appearance  enson,  76  Cal.  328,  347. 


G8  CRIMINAL    EVIDENCE.  §  55 

without  his  consent  by  the  police  officers  who  arrested  him,  or 
who  have  him  in  charge,  and  his  nude  body  is  examined  for 
purposes  of  identification.  The  witness  may  testify  to  what 
the  prisoner  wore  and  to  what  articles  were  found  concealed 
upon  him  when  he  was  searched.  Permitting  witnesses  to 
testify  to  what  they  saw  does  not  compel  the  accused  to  testify 
against  himself,  and  such  a  case  must  clearly  be  distinguished 
from  that  in  which  the  accused  is  placed  upon  the  witness 
stand  and  compelled  to  answer  questions.1  Where  the  condi- 
tion of  the  prisoner's  hand  at  the  date  of  the  crime  is  relevant, 
it  has  been  held  that  he  may  be  compelled  to  exhibit  it,  de- 
void of  covering  ;  and  a  witness  who  saw  it  thus  exhibited 
at  the  coroner's  inquest  may  testify  to  its  condition,  though 
the  exhibition  was  obtained  by  intimidation.8 

§  55.  Mode  and  effect  of  identifying  evidence. — Whether  a 
witness  in  identifying  the  accused  as  a  person  who  committed 
the  crime  is  expressing  an  opinion  or  stating  a  fact  within  his 
own  knowledge  is  a  question  upon  which  a  diversity  exists 
among  the  cases.  Some  of  the  authorities  regard  identity  as  a 
fact  and  require  the  witness  to  identify  the  prisoner  solely  as 
a  matter  of  his  own  knowledge  and  on  personal  recollection. 

So  the  witness  may  be  asked,  "Do  you  know  A.?  "  and,  if  he 
does,  he  may  then  state  whether  the  accused  is  the  individual 
mentioned.  He  can  not  be  permitted  to  state  that  he  "thinks" 
the  accused  is  A.,  or  give  his  impression  that  a  man  whom  he 
saw  near  the  scene  of  the  crime  is  identical  with  the  accused. 
He  should  state  facts,  leaving  the  inference  of  identity  with 
the  jury.3  According  to  another  view  a  witness,  in  identify- 
ing the  accused  is  expressing  an  opinion  or  impression,  founded 
on  his  observation  of  numerous  details,  as  his  physical  ap- 
pearance, dress  or  other  personal  and  peculiar  incidents.  He 
is  accordingly  permitted  to  frame  his  answer  to  a  question 
touching  the  identity  of  the  prisoner,  in  the  form  of  an  ex- 

1  O'Brien  v.  State,  125  Ind.  38,  45 ;  s  People  v.  Williams,  29  Hun  520, 

Leeper  v.  State,  29  Tex.  App.  63,  14  523,  524;  People  v.  Wilson,  3  Parker 

S.  W.  Rep.  398.  Cr.  Rep.  (N.  Y.)  199,  206. 

2 States.  Garrett,  71  N.  Car.  85,  87. 


§  55  PRIMARY   -EVIDENCE.  69 

pression  of  opinion  mainly  because  the  facts  constituting  sim- 
ilarity, or  the  reverse,  in  personal  appearance  are  so  numerous 
and  peculiar  that  they  can  not  be  specifically  narrated  so  as  to 
bring  out  clearly  their  proper  force  and  significance  before  the 
jury.1  Hence  a  witness,  after  describing  a  person  seen  by  him, 
may  state  that,  in  his  opinion,  it  was  the  prisoner,  or  that  he 
resembled  the  prisoner,  under  the  rule  permitting  a  non-expert 
witness  to  give  his  opinion  where  the  jury  would  be  unable, 
otherwise,  to  form  an  intelligent  conception  of  identity.2  In- 
deed, even  if  it  be  conceded  that  identity  is  a  fact,  the  answer 
should  hardly  be  rejected  because  the  witness  is  not  positive  of 
the  identity  of  the  accused  beyond  all  doubt;  or,  because, 
through  excessive  caution,  he  qualifies  his  answers  by  such 
expressions  as  "  I  think,!'  or  "  I  believe."  Witnesses  can  not 
be  required  to  state  all  facts  with  equal  positiveness.3 

Pointing  out  a  person  by  a  witness  to  the  jury  without  nam- 
ing him  is  a  sufficient  identification  if  his  name  is  shown  by 
independent  evidence,4  nor  will  all  the  testimony  of  a  witness' 
be  expunged  merely  because  he  failed  to  identify  the  accused 
when  the  latter  would  not  arise  for  identification. 

When  a  witness  has  forgotten  the  appearance  of  the  accused, 
he  has  been  allowed  to  testify  that  on  a  former  trial  he  had 
identified  the  person  then  accused,  and  such  evidence,  if 
coupled  with  independent  testimony  that  the  present  accused 
is  the  same  person  who  previously  had  been  identified,  is  suffi- 
cient evidence  of  identity  to  sustain  a  conviction.5 

The  language  constituting  an  identification  by  a  third  per- 
son not  produced  in  court  is  hearsay,  if  coming  from  a  person 
to  whom  it  was  related,6  unless  the  extra-judicial  identification 

1  See  Underhill  on  Evid.,  §  186.  5  Ruston  v.  State,  4  Tex.  App.  432, 

2  Com.  v.  Sturtivant,  117  Mass.  122,  434.  Evidence  of  defendant's  per- 
19  Am.  Rep.  401 ;  State  v.  Powers,  130  sonal  appearance  two  years  before 
Mo.  475,  32  S.W.  Rep.  984;  State  v.  trial  and  one  year  subsequent  to  the 
Lytle,  117  N.  Car.  799,  23  S.  E.  Rep.  crime  is  relevant.  Com.  v.  Campbell, 
476.  155  Mass.  537,  30  N.  E.  Rep.  72. 

8  People  v.  Rolfe,  61  Cal.  540,  543;  6  Hopt  v.  Utah.  110  IT.  S.  574,  581, 

Underhill  on  Evid.,  §186.  582;   People  v.  Mead,  50  Mich.  228; 

4  Com.  v.  Whitman,  121  Mass.  361,  Rose  v.  State,  13  Ohio  Cir.  Ct.  Rep. 

362.  342,  7  Ohio  Dec.  226. 


70  CRIMINAL    EVIDENCE.  §  56 

is  a  part  of  the  res  gestae  of  some  relevant  fact,1  or  unless  it  is 
contained  in  a  dying  declaration  which  is  admissible  as  such. 
The  objection  that  it  is  hearsay  can  not  then  be  urged  against 
it.2 

Under  this  rule  a  witness  will  not  be  allowed  to  state  that  a 
bystander  pointed  out  a  person  to  him  and  declared  that  he 
committed  the  crime.3 

§  56.  Identification  of  the  voice. — Evidence  of  identity  con- 
sisting of  the  recognition  of  the  voice  of  the  accused  by  a  wit- 
ness who  is  familiar  with  it  has  been  received.  The  witness 
may  state  that  the  accused  was  present  on  a  certain  occasion, 
and  made  a  statement,  and  may  then  add  that  he  knows  it  was 
the  accused  because  he  recognized  his  voice.4  This  rule  is  par- 
ticularly applicable  in  the  case  of  nocturnal  crimes,  where  it  is 
physically  impossible  for  the  witness  to  have  seen  the  accused, 
though  he  may  have  been  in  close  proximity  to  him.  The 
same  rule  would  doubtless  apply  in  the  case  of  a  blind  witness.5 
The  accused  will  not,  unless  he  shall  go  upon  the  witness 
stand,  be  allowed  to  put  his  own  voice  in  evidence  in  order  to 
show  his  natural  voice  by  speaking  aloud  in  court.6  If  per- 
mitted to  speak,  not  being  under  oath  at  the  time,  he  may 
simulate.  The  jury  will  not  hear  his  natural  and  ordinary 
voice,  but  one  which  is  manufactured  for  the  occasion. 

Jordan  v.  Com.,  25  Gratt.  (Va.)  594,598;  Stepp  v.  State,  31  Tex.  Cr. 

943,  945.  Rep.  349,  20  S.  W.  Rep.  753. 

2  Sylvester  v.  State,  71  Ala.  17,  26;  5  See  also  admissions  and  communi- 
People  v.  Gardner,  144  N.  Y.  119,  128.  cations  sent  and  received  by  telephone. 

3  Felder  v.  State,  23  Tex.  App.  477,  TInderhill  on  Ev.,  §  85,  and  People  v. 
485-488;  Reddick  v.  State  (Tex.,  1896),  Ward,  3  N.  Y.  Crim.  Rep.  483,  511, 
34  S.  W.  Rep.  274;  State  v.  Hutchi-  where  a  witness  was  permitted  to 
son  (Iowa,  1895),  64  N.  W.  Rep.  610;  state  a  conversation  with  the  prisoner 
Davis  v.  State  (Ark.,  1897),  39  S.  W.  had  over  a  telephone.  The  witness 
Rep.  356.  testified    he    had    talked    with    him 

4  People  v.  Willett,  92  N.  Y.  29,  32,  hundreds  of  times  before  over  it, 
33 ;  State  v.  Kepper,  65  Iowa  745,  749 ;  knew  his  voice  well  and  recognized 
Givens  v.  State  (Tex.,  1896),  34  S.  W.  it  on  this  occasion. 

Rep.  626;  Davis  v.  State,  15  Tex.  App.        6  Com.  v.  Scott,  123  Mass.  222,  234. 


CHAPTER  VI. 


THE    ACCUSED    AS    A    WITNESS. 


§57 


58 


Statutory  competency  of  the  ac-     §  67. 

cused. 
The  accused  is  not  compellable        68. 

to    testify    against  himself — 

His  credibility. 

59.  Mode  of  examining  the  accused. 

60.  Cross-examination — Incrimina- 

ting and  disgracing  questions.        69. 

Examination  as  to  prior  im- 
prisonment, etc.  70. 

Statutory  limitation  of  cross- 
examination  to  relevant  mat- 
ters. 71. 

Mode  of  cross-examination. 

Privileged   communications  on        72. 
the  cross-examination. 

Conclusiveness  of  answers — Im-        73. 
peachment  by  other  wit- 
nesses. 74. 

The  bad  character  of  the  ac- 
cused— When  admissible  to 
impeach  him.  75. 


61 


62 


66 


Commenting  on  the  failure  of 
the  accused  to  testify. 

Exclusion  or  withdrawal  of 
comments  on  failure  to  testi- 
fy— Failure  to  call  other  wit- 
nesses, or  to  testify  to  incrim- 
inating facts. 

Accomplices  defined — Province 
of  court  and  jury. 

Accomplices  when  jointly  in- 
dicted—  Witnesses  for  each 
other. 

Accomplices  as  witnesses  for 
the  state. 

Immunity  of  accomplice  when 
testifying  for  the  state. 

Credibility  and  corroboration 
of  accomplices. 

Extent  of  corroboration  re- 
quired— It  must  be  of  material 
facts. 

The  nature  of  the  crime  as  a 
test  of  corroboration — Suffi- 
ciency of  corroboration. 


§  57.  Statutory  competency  of  the  accused. — Because  of  the 
common  law  rule  rendering  parties  to  the  record  incompetent 
as  witnesses,  the  defendant,  in  a  criminal  trial,  was  incapable 
of  testifying  in  his  own  behalf.  It  was  considered  certain  that 
his  fear  of  punishment,  whether  he  were  conscious  of  guilt,  or 
of  innocence,  would  cause  him  to  testify  untruthfully;  and,  to 
avoid  this,  his  testimony  was  wholly  excluded.  At  the  present 
time,  in  most  states,  the  accused  may,  as  a  matter  of  statutory 
right,  if   he  so  elect,  testify  for  himself.     These  statutes  do 

'(71) 


72  CRIMINAL    EVIDENCE.  §  58 

not,  of  course,  violate  a  constitutional  provision  that  a  prisoner 
shall  not  be  compelled  to  testify  against  himself.1  But  as  they 
are  derogatory  of  the  common  law,  they  should  receive  a  strict 
construction,  though  not  such  a  construction  as  will  nullify  the 
legislative  intention,  and  deprive  the  accused  of  his  right  to 
speak. 

These  enactments  leave  the  exercise  of  the  right  to  testify 
wholly  optional  with  the  accused,  and  many  of  them  in  terms 
provide  that  his  failure  or  his  neglect  to  exercise  it,  can  not  be 
used  as  an  argument  against  him.2  In  the  federal  courts  the 
competency  of  witnesses  is  regulated  by  a  statute  which  pro- 
vides that  the  laws  of  the  state  within  whose  limits  the  federal 
court  is  located  shall  be  its  rules  of  decision  as  to  competency 
in  trials  at  common  law,  in  equity  and  admiralty.  As  the 
criminal  jurisdiction  of  the  federal  courts  is  purely  statutory, 
the  competency  of  witnesses  in  criminal  trials  in  those  courts 
is  not  regulated  by  the  statute  of  the  state  in  which  the  court 
is  located,  but  by  the  common  law  of  the  state,  modified  by 
the  federal  statutes  defining  crimes  and  regulating  criminal 
proceedings  and  the  competency  of  witnesses.3 

§  58.  The  accused  is  not  compellable  to  testify  against  him- 
self— His  credibility. — Though  the  accused  is  now  a  compe- 
tent witness  for  himself,  he  can  not,  under  existing  constitu- 
tional provisions,   federal  and  state,    "be   compelled   in   any 

1  State  v.  Bartlett,  55  Me.  200,  217.     ness  in  any  criminal  case,  or  proceed- 

2  See  post,  §  58.  ing,  by  reason  of  his  interest  in  the 
3TJnited  States  v.  Hawthorn,  1  Dill,     event  of  the  same  being  a  party,  or 

C.   C.    (U.   S.)  422 ;  Logan  v.  United  otherwise,  or  by  reason  of  his  having 

States,  144  U.  S.  263,  12  Sup.  Ct.  617.  been  convicted  of  any  crime;  but  such 

This  matter  is  now  regulated  by  the  interest  or  conviction  may  be  shown 

act  of  March  16,  1878,  to  be  found  in  for  the  purpose  of  affecting  his  credi- 

20  U.  S.   Stat.  L.  30,  p.  312,  ch.  37.  bility ;    provided,   however,  that  the 

The  statutory  provisions  of  the  vari-  defendant  in  any  criminal  case  shall 

ous   states  differ  in  detail,  but  their  only  at  his  own  request  be  deemed  a 

central  idea  is  to  give  the  accused  the  competent  witness,  and  his  neglect  to 

fullest  opportunity   to  testify,  while  testify  shall  not  create  any  presump- 

permitting  no  inference  of  his  guilt  tion  against  him,  nor  shall  the  court 

to  arise  from  his  total  silence.     The  permit  any  reference  or  comment  to 

statute  of  Michigan  which  reads:  "No  be  made  upon  such  neglect,"  may  be 

person  shall  be  disqualified  as  a  wit-  taken  as  an  example. 


§58 


THE    ACCUSED    AS    A    WITNESS. 


73 


criminal  case  to  be  a  witness  against  himself."1  These  provis- 
ions are  meant  to  protect  the  accused  not  only  from  being 
compelled  to  answer  questions  calling  for  an  express  confession 
of  guilt,  but  from  those  calling  for  collateral  circumstances 
also.2  They  may  be  violated  by  the  seizure  under  a  search 
warrant  and  the  compulsory  production  of  the  private  papers 
of  the  accused  in  evidence.* 

Most  of  the  statutes  conferring  competency  upon  the  ac- 
cused expressly  provide  that  he  can  be  called  as  a  witness  at 
his  own  request  only.  The  purpose  of  these  statutes  is  to  con- 
fer a  privilege  upon  him,  not  to  impose  an  obligation  upon  the 
state  to  call  him  as  its  witness.  Hence,  such  a  statute  does 
not  entitle  him  to  demand  that  he  shall  be  called  as  a  witness 
for  the  prosecution,  even  to  prove  his  own  handwriting.* 

If  the  accused  goes  on  the  witness  stand  in  his  own  behalf 
the  credibility  of  his  evidence  is  for  the  jury  alone.5  But  the 
court  must  (without,  however,  giving  too  much  prominence  to 
this  fact)  instruct  them  that  they  should,6  or  that  they  may,7 


JU.  S.  Const.,  Fifth  Amend.  These 
provisions  have  been  held  applicable 
to  accused  persons  and  witnesses 
summoned  to  appear  before  the  inter- 
state commerce  commission,  Counsel- 
mann  v.  Hitchcock,  142  U.  S.547,  562; 
to  legislative  investigations,  Emery's 
Case,  107  Mass.  172,  179 ;  and  to  pro- 
ceedings to  punish  for  contempt,  In  re 
McKenna,  47  Kan.  734,  738. 

2  Emery's  Case,  107  Mass.  172,  179. 

3  Boyd  v.  United  States,  116  U.  S. 
616. 

4  Com.  v.  Pratt,  137  Mass.  98,  107. 

5  The  coui't  may  instruct  the  jury 
that  they  ai*e  not  to  accept  the  evi- 
dence of  the  accused  blindly,  or  any 
further  than  it  is  corroborated  by 
other  evidence,  but  may  consider 
whether  it  is  true,  and  is  given  in 
good  faith,  or  merely  to  prevent  a  con- 
viction. State  v.  Mecum  (Iowa,  1896), 
64  N.  W.  Eep.  286.  But  a  charge  re- 
minding the  jury  that  the  accused  is 


the  only  surviving  witness  of  a  homi- 
cide, for  which  he  is  on  trial,  while  at 
the  same  time  emphasizing  his  inter- 
est in  the  outcome  of  the  trial  and 
pointing  out  the  force  and  cogency  of 
the  incriminating  circumstances,  is 
very  objectionable.  Hickory  v.  United 
States,  160  U.  S.  408,  16  S.  Ct.  327. 

6  State  v.  Renfrow,  111  Mo.  589,  598; 
People  v.  Cronin,  34  Cal.  191,  203; 
People  v.  Crowley,  102  N.  Y.  234,  238; 
Anderson  v.  State,  104  Ind.  467,  472 ; 
Wilkins  v.  State,  98  Ala.  1,  13  So. 
Rep.  312;  Com.  v.  Harlow,  110  Mass. 
411 ;  State  v.  Moelchen,  53  Iowa  310, 
316,  317;  State  v.  Slingerland,  19  Nev. 
135,  141. 

7  State  v.  Maguire,  113  Mo.  670,  21  S. 
W.  Rep.  212 ;  State  v.  Bryant,  134  Mo. 
246,  35  S.  W.  R.  597;  State  v.  Ihrig, 

106  Mo.  267,  270;  Panton  v.  People, 
114  111.  505,  507;  Chambers  v.  People, 
105  111.  409,  413,  414;  Bird   (-.State, 

107  Ind.  154,  156;  Hartford  v.  State, 


74  CRIMINAL    EVIDENCE.  §  59 

consider  the  facts  that  he  is  interested  in  the  outcome  of  the 
trial,  and  is  testifying  in  his  own  behalf,  in  determining  his 
credibility.1 

The  jury  should  not  permit  the  fact  that  the  accused,  while 
testifying,  is  burdened  with  an  imputation  of  crime  to  influ- 
ence them  to  such  an  extent  that  they  will  disregard  his  evi- 
dence, if  they  believe  it  is  true.  They  should  remember  that, 
though  accused,  he  is  presumed  to  be  innocent,  until  they  are 
convinced  he  is  guilty,  which  verdict  must  be  based  upon  the 
whole  evidence,  including  his  own.2  Hence,  the  jury  may  not, 
at  pleasure  and  without  regard  to  the  elements  of  credibility 
which  the  evidence  of  the  accused  may  possess,  reject  it  be- 
cause of  his  interest,  or  because  they  are  not  satisfied  that  it 
has  been  corroborated.3  They  must  always  fairly  consider  his 
evidence  together  with  all  the  evidence  in  the  case. 

§  59.  Mode  of  examining  the  accused. — As  the  accused  is  a 
competent  witness,  he  has  a  constitutional  right  to  demand 
that  he  shall,  when  testifying,  be  questioned  by  his  own  coun- 
sel in  the  same  manner  as  other  witnesses.4  The  court  can 
not,  therefore,  silence  his  counsel  and  compel  him  to  give  a 
general  account  of  the  whole  transaction,  nor  is  his  counsel 
precluded  from  objecting  to  irrelevant  questions  put  to  him  on 
his  cross-examination.5  He  must  be  permitted  on  his  direct 
examination  to  explain  his  conduct  and  declarations  as  he  has 
testified  to  them,  or  as  they  have  been  described  by  other  wit- 

96  Ind.  461,  469;  Smiths.  State,  108  ^ee  cases  cited  Underhill  on  Ev., 

Ala.  1,  18  So.  R.  306;  People  v.  Kesh  §346a. 

(Mich.,  1896),  65  N.  W.  Rep. 99;  State  2Bird  v.   State,   107  Ind.  154,  156; 

v.  Metcalf,   17  Mont.  417,  43  Pac.  R.  Randall  v.  State,  132  Ind.  539;  State 

182;  State  v.  Holloway,  117  N.  Car.  v.  Taylor,  134  Mo.  109,  35  S.  W.  Rep. 

730,  23  S.  E.  Rep.  168;   Newport  v.  92;  State  v.  Wells,  111  Mo.  533;  Sulli- 

State,  140  Ind.  299;  Wrye  v.  State,  95  van  v.  People,  114  111.  24,  27;  State  v. 

Ga.  466 ;  State  v.  Tarter,  26  Ore.  38 ;  Sanders,  106  Mo.  188.     See  Underhill 

Hamilton  v.  State  (Ark.,  1897),  36  S.  on  Evid.,  §234. 

W.  Rep.  1054.    The  cases  arenothar-  3  Owens  v.  State,  63  Miss.  450,  452. 

monious  upon  the  proper  language  of  4  Clark   v.   State,   50  Ind.  514,  515 ; 

the  instruction.     Its  form  is  usually  Fletcher  v.  State,  49  Ind.  124,  132. 

prescribed  by  statute.  s  People  v.  Brown,  72  N.  Y.  571,  573 ; 

Hanoff  v.  State,  37  Ohio  St.  178,  180. 


§59 


THE    ACCUSED    AS    A    WITNESS. 


75 


nesses.  He  must  be  permitted  fully  to  unfold  and  explain  his 
actions,  and  to  state  the  motives  which  he  claims  prompted 
them.  It  is,  within  certain  limits,  relevant  for  him  to  state 
what  intention  was  present  in  his  mind  when  he  participated 
in  a  transaction  which  is  in  issue.1  And  the  jury  are  the  sole 
judges  to  determine  whether  the  defendant's  statement  is  false. 
They  should  not  ignore  his  statement  of  intention,  unless  they 
believe  it  wholly  false;  and  an  instruction  which  requires  the 
jury  to  do  so  is  error.  They  must  consider  it  in  connection 
with  all  the  evidence.  The  inference  which  they  draw  from  it 
may  be  strong  enough  to  overcome  any  conclusion  of  guilty 
intention  which  they  may  draw  from  his  other  acts  or  declara- 
tions.2 

One  of  several  defendants  jointly  tried  who  becomes  a  wit- 
ness for  himself  is  a  witness  for  all  purposes  ;  and  his  testimony 
while  a  witness  in  his  own  behalf  is  in  no  way  incompetent 
merely  because  it  may  be  injurious  or  beneficial  to  a  co-defend- 
ant.    The  fact  that,  as  usually  happens,  he  tries  to  exonerate 


1  In  People  v.  Quick,  51  Mich.  547, 
it  was  held  error  to  exclude  the  ques- 
tion "Why  did  you  do  that?"  State 
v.  Montgomery,  65  Iowa  483.  "The 
object  of  the  recent  changes  was  not 
merely  to  enable  parties  to  disclose 
facts  wholly  within  their  knowledge, 
but  to  do  what  had  heretofore  been 
impossible,  to  explain  the  motives 
with  which  they  were  performed, 
and  to  explain,  if  need  be,  what  they 
meant,  or  intended  to  be  understood 
as  meaning,  by  what  they  may  have 
said  in  regard  to  any  material  fact.  If 
parties  are  to  be  kept  in  harness  and 
not  allowed  to  explain  their  actions 
and  words  when  they  admit  of  ex- 
planation and  when  it  is  needed,  but 
half  the  evil  which  was  felt  under  the 
old  rule  has  been  removed."  People 
v.  Farrell,  31  Cal.  576,  584.  Cf.  Ross  v. 
State,  116  Ind.  495,  497.  "  When  an 
act  forbidden  by  law  is  intentionally 
done,  the  intent  to  do  the  act  is  the 


criminal  intent,  which  imparts  to  it 
the  character  of  an  offense,  and  no 
one  who  violates  the  law,  which  he  is 
conclusively  presumed  to  know,  can 
be  heard  to  say  that  he  had  no  crimi- 
nal intent  in  doing  the  forbidden  act. 
A  party  can  not  excuse  himself  for  an 
act  intentionally  done,  and  which  is  a 
violation  of  the  law,  by  saying  he  did 
not  so  intend.  But  where  acts  are 
equivocal  and  become  criminal  only 
by  reason  of  the  intent  with  which 
they  are  done,  both  must  unite  to  con- 
stitute the  offense,  and  both  facts 
must  be  proved.  In  such  cases,  un- 
less the  intent  is  proved,  the  offense 
is  not  proved.  As  the  criminal  intent 
may  be  and  usually  is  inferred  from 
the  declarations  and  conduct  of  the 
accused,  he  is  permitted  to  disavow 
the  imputed  purpose  and  repel  the 
presumption."  Smith,  C.  J.,  in  State 
v.  King,  86  N.  Car.  603. 

2  State  v.  Maynard,  19  Nev.  284,  288. 


7G  CRIMINAL    EVIDENCE.  .§  60 

himself  by  casting  the  guilt  upon  his  associates,  while  it  may 
bear  upon  his  credibility,  is  otherwise  immaterial.1 

§  GO.  Cross-examination — Incriminating  and  disgracing 
questions. — The  accused,  when  testifying  in  his  own  behalf, 
waives  many  of  the  peculiar  constitutional  privileges  which  be- 
long to  him  as  one  accused  of  crime.  It  is  usually  provided 
by  statute  that  he  may  be  examined  and  cross-examined  "as 
any  other  witness,"  and  where  such  is  the  case,  he  will  not  be 
permitted  to  claim  any  privilege  while  he  is  a  witness  that  is 
not  enjoyed  by  other  witnesses.  In  other  words,  the  rule  then 
is  that  he  can  not  claim  as  a  witness  the  privileges  which  be- 
long to  him  solely  as  the  accused.  He  can  not  complain  if 
considerable  latitude  is  allowed  on  his  cross-examination,  and, 
generally,  he  may  be  asked  on  his  cross-examination  the  same 
questions  as  any  witness. 

In  states  where  the  cross-examination  of  the  accused  is 
not  by  statute  expressly  limited  to  matters  brought  out  on  his 
direct  examination,  he  may  be  cross-examined,  not  only  upon 
matters  strictly  relevant  to  the  issue,  but  upon  those  which  are 
collateral  and  apparently  irrelevant,  and  which  are  calculated 
only  to  test  the  credibility  and  weight  of  his  testimony.2 

1  Richards  v.   State,   91  Tenn.  723,  *  State  v.  Ober,  52  N.  H.  459,  462;  State 

725.  v.  Cohn,  9  Nev.   179,   189;   Keyes  v. 

2Stalcup  v.   State,  146  Ind.  270,  45  State,  122  Ind.  527,  531;  Spies  v.  Peo- 

N.  E.  Rep.  334;   People  v.   Foo,   112  pie,  122  111.  1 ;  State  v.  Wentworth,  65 

Cal.  17,  44  Pac.   Rep.   453;   State  v.  Me.  234,  240;  Boyle  v.  State,  105  Ind. 

Harvey,  131  Mo.  339,  32  S.  W.  Rep.  469,  474;  Mitchell  v.  State,  94  Ala.  68, 

1110;   States.  Un  Dong,  106  Cal.  83;  73;    McKeone  v.   State,  6  Colo.  346, 

People  v.  Roemer,  114  Cal.,  51,  45  Pac.  348;    State  v.    Nelson,    98  Mo.   414; 

Rep.  1003 ;  Frank  v.  State  (Wis.,  1896),  Yanke  v.  State,  51  Wis.  464,  468 ;  Peo- 

68  N.  W.  Rep.  657;  Com.  u.  Nichols,  pie  v.  Mayes,  113  Cal.  618,  45  Pac.  Rep. 

114  Mass.  285,  287 ;  State  v.  Pfefferle,  860 ;  People  v.  Conroy  (N.Y.,  1897),  47 

36  Kan.  90,96;   Com.  v.  Lannan,  13  N.  E.  Rep.  258.     Commenting  on  this 

Allen  563;  Thomas  v.  State,  103  Ind.  rule  the  court  says,  in  State  v.  Crapo,  76 

419,  438;  People  v.  Reinhart,  39  Cal.  N.Y.  288,  290:  "He  goes  upon  the  stand 

449,450;  Hanoff  v.  State,  37  Ohio  St.  under  a  cloud.      He  stands  charged 

178,  180,  181,  Okey,  J.,  dissenting,  pp.  with  a  crime,  and  is  under  the  strong- 

184-187;  People  v.  Tice,  131  N.Y.  651,  est  possible  temptation   to  give   evi- 

657;  Connors  v.  People,  50  N.  Y.  240,  dence  favorable  to  himself.    His  evi- 

242;  Com.  v.  Morgan,  107  Mass.  199,  dence  is  therefore  looked  upon  with 

204;   State   v.  Witham,    72   Me.   531;  suspicion  and  distrust,  and  if,  in  ad- 


§61 


THE    ACCUSED    AS    A    WITNESS. 


77 


§  61.   Examination  as  to  prior  Imprisonment,  etc. — He  may 

be  questioned  as  to  specific  facts  calculated  to  discredit  him. 
Thus  his  previous  arrest,1  or  indictment,2  his  conviction  of  a 
felony,3  a  previous  imprisonment  in  a  penitentiary,4  or  house  of 
correction,5  his  prior  contradictory  statements,6  disorderly  ac- 
tions,7 or  the  commission  of  offenses  similar  to  that  charged,8 
attempts  to  bribe  witnesses,9  or  simulation  of  insanity,10  may 
all  be  brought  out  by  questions  put  to  him  on  his  cross-exam- 
ination, to  show  what  credit  his  evidence  should  receive." 


dition,  he  may  be  submitted  to  cross- 
examination  upon  every  incident  of 
his  life,  and  every  charge  of  vice  or 
crime  which  may  have  been  made 
against  him,  and  which  has  no  bear- 
ing upon  the  charge  for  which  he  is 
being  tried,  he  may  be  so  prejudiced 
in  the  minds  of  the  jury  as  frequently 
to  induce  them  to  convict  on  insuf- 
ficient evidence." 

1  State  v.  Murphy,  45  La.  An.  958, 
13  So.  Rep.  229;  People  v.  Foote,  93 
Mich.  38,  40;  Hanoff  v.  State,  37  Ohio 
St.  178,  180;  State  w.  Bacon,  13  Ore. 
143,  147;  People  v.  Ogle,  104  N.Y.  511, 
514 ;  Brandon  v.  People,  42  N.  Y.  265. 
Some  cases  hold  that  the  question, 
"  Have  you  ever  been,  or  how  many 
times  have  you  been,  arrested?"  can 
not  be  asked,  as  an  arrest,  involving 
only  an  unproved  charge  of  crime,  of 
which  innocence  is  presumed,  throws 
no  light  upon  his  veracity.  People  v. 
Brown,  72  N.  Y.  571,  573;  People  v. 
Crapo,  76  N.  Y.  288,  293;  Ryan  v. 
People,  79  N.Y.  593,  601 ;  State  v.  Huff, 
11  Nev.  17,  26-28;  People  v.  Hamblin, 
68  Cal.  101,  102. '■ 

2 People  v.  Clark,  102  N.Y.  735; 
Wroe  v.  State,  20  Ohio  St.  460 ;  People 
v.  Gale,  50  Mich.  237.  Contra,  Smith 
v.  State,  79  Ala.  21. 

3  N.  Y.  Code  Civ.  Pro.,  §832;  Peo- 
ple v.  Johnson,  57  Cal.  571,  574;  State 
v.  Minor,  117  Mo.  302,  306,  22  S.  W. 
Rep.  1085;  State  v.  McGuire,  15  R.  I. 


23 ;  State  v.  Farmer,  84  Me.  436,  440 ; 
Prior  v.  State,  99  Ala.  196, 15  So.  Rep. 
681 ;  People  v.  Arnold  (Cal.,  1887),  48 
Pac.  Rep.  803.  A  prior  conviction  of  an 
infamous  crime  does  not  deprive  the 
accused  of  the  absolute  and  arbitrary 
statutory  right  to  testify  in  his  own 
behalf.  Williams  v.  State,  28  Tex. 
App.  301,  303;  Newman  v.  People,  63 
Barb.  (N.Y.)  630;  Underhill  on  Evid., 
317-319. 

I  People  v.  Courtney,  31  Hun  199. 

5  Com.  v.  Bonner,  97  Mass.  587,  589. 

6  State  v.  Helm  (Iowa,  1896),  66  N. 
W.  Rep.  751 ;  Hicks  v.  State,  99  Ala. 
169,  13  So.  Rep.  375;  Com.  v.  Tol- 
liver,  119  Mass.  312,  315 ;  May  r.  State, 
33  Tex.  C.  Rep.  74,  24  S.W.  Rep.  910; 
State  v.  Avery,  113  Mo.  475,  21  S.  W. 
Rep.  193;  Huffman  v.  State,  28  Tex. 
App.  174,  178;  Chambers  v.  People, 
105  111.  409. 

7 People  v.  McCormick,  135  N.Y. 
663,  664;  Goon  Bow  v.  People,  160  111. 
438,  43  N.  E.  Rep.  593 ;  Com.  v.  Barry, 
8  Pa.  Co.  Ct.  Rep.  216. 

8  People  v.  Casey,  72  N.  Y.  393,  399; 
People  v.  Noelke,  94  N.  Y.  137,  144; 
People  v.  Hooghkerks,  96  N.  Y.  149, 
164;  Fassinow  v.  State,  89  Ind.  235, 
237. 

9  Bates  v.  Holladay,  31  Mo.  App. 
162,  169;  State  v.  Downs,  91  Mo.  19. 

10 State  v.  Pritchett.  106  N.  Car.  6(17. 

II  See,  also,  Bell  v.  State,  31  Tex.  Cr. 
Rep.  276,  277 ;  McDaniel  i\  State,  97 


78  CRIMINAL    EVIDENCE.  §  62 

§  G2.  Statutory  limitation  of  cross-examination  to  relevant 
matters. — If,  however,  the  question  calls  for  an  answer, 
which,  though  ostensibly  invoked  solely  to  aid  the  jury  in  es- 
timating the  credibility  of  the  accused,  may,  by  showing  him 
guilty  of  other  similar  crimes,  indirectly  lead  them  to  infer  that 
he  is  guilty  of  the  crime  charged,  the  court  may  interfere  in  its 
discretion.  To  compel  the  accused  to  answer  indiscriminately 
all  questions  respecting  past  criminal  transactions,  which, 
though  similar,  are  separate  and  distinct  from  that  for  which, 
he  is  on  trial,  would  not  only  be  treating  him  more  harshly 
than  other  witnesses,  but  would  be  a  serious  infringement  of 
his  constitutional  privileges.  Hence,  even  in  those  states 
where  no  statute  exists  confining  the  cross-examination  within 
the  limits  of  the  direct,  it  is  generally  held  that  any  disgrac- 
ing question  which  is  put  to  the  accused  upon  his  cross-exam- 
ination must  be  one  that  will  affect  his  credibility  as  a  witness 
alone,  either  directly  or  by  its  tendency  to  show  a  bad  moral 
character.1 

In  some  states  it  is  expressly  provided  by  statute  that  the 
prosecution  shall  be  allowed  to  cross-examine  the  accused  only 
upon  matters  to  which  he  has  already  testified,  or  which  are 
legitimately  connected  therewith,  or  which  were  inquired  of  or 
referred  to  on  the  direct  examination.2     These  statutes  should 

Ala.   14,   12  So.   Rep.   241;    State  v.  animation.    The    same    latitude  and 

Farmer,   84    Me.   436,   440;    State  v.  the    same    limitations    apply    to    his 

Walsh,  44   La.    An.    1122;   Parker  v.  cross-examination  as   if  he   had   not 

State,  135  Ind.  534,  35  N.E.  Rep.  1105;  been   a  party."     Hanoff  v.  State,  37 

United  States  v.  Brown,  40  Fed.  Rep.  Ohio  St.  178,  180.    The  accused  may 

457;  Com.  v.  Lannan,  155  Mass.  168;  be  asked  on  cross-examination  if  he 

State  v.  Bulla,  89  Mo.  595;  People??,  had  not  tried  to  evade  arrest,  Ryan 

Eckert,   2  N.   Y.    Cr.  Rep.  470,   481,  v.  People,  79  N.  Y.  593;  and  if  he  had 

and  other  cases  cited ;  Underbill  on  not  deserted  his  home  and  family  and 

Evid.,  §  346a.     "  While  occupying  the  become  a  tramp.     Yanke  v.  State,  51 

witness  stand  he  was  entitled  to  the  Wis.  464. 

same  rights  and  privileges,  and  was  1  People   v.   Brown,  72  N.  Y.   571, 

subject  to  the  same  rules  of  evidence,  573. 

as  any  other  witness.  The  fact  that  2  State  v.  Saunders,  14  Ore.  300, 
he  was  also  a  party  accused  of  a  crime  309;  State  v.  Harvey,  131  Mo.  339, 
clothed  him  with  no  greater  rights  or  32  S.  W.  Rep.  1110;  State  v.  Cham- 
privileges  as  a  witness,  nor  subjected  berlain,  89  Mo.  129,  133 ;  State  v. 
him  to  any  different  rule  of  cross-ex-  Gleim,  17  Mont.  17,  41  Pac.  Rep.  998 ; 


§  63  THE  ACCUSED  AS  A  WITNESS.  79 

be  strictly  construed  with  the  view  of  protecting  the  rights  of 
the  accused  and  giving  him  a  fair  and  impartial  trial.  Hence, 
in  those  states  it  is  reversible  error  for  the  court  to  permit  the 
cross-examination  to  extend  be}rond  the  limits  of  the  direct, 
both  as  regards  questions  directly  relevant  and  questions  af- 
fecting his  credibility  only.  And  this  is  the  rule  where  the 
court  has  the  discretion  to  compel  other  witnesses  to  answer 
disgracing  questions  on  their  cross-examination.1 

§  G3.  Mode  of  cross-examination. — The  cross-examination 
of  the  accused  ought  to  be  carried  on  in  a  regular  and  orderly 
manner.  He  can  not  be  interrogated  by  the  prosecution  until 
he  is  properly  turned  over  for  cross-examination  at  the  close 
of  his  direct  examination.  But  where  the  defendant,  on  tak- 
ing his  seat  after  the  direct  examination,  declares  to  the  jury 
that  he  is  a  peaceable,  law  abiding  citizen,  and  that  he  never 
had  any  idea  of  committing  a  crime,  it  is  not  reversible  error 
to  permit  the  district  attorney  to  ask  him  if  he  had  had  trouble 
with  many  other  persons.2  It  has  been  held  that  the  court 
may  permit  the  accused  to  be  recalled  after  his  cross-examina- 
tion has  been  completed.3 

§  64.    Privileged  communications  on  the  cross-examination. 

— The  accused  does  not,  merely  by  going  upon  the  witness 
stand,  waive  the  protection  which  the  statute  affords  his  confi- 

State  v.  Underwood,  44  La.  An.  852,  would  be  if  he  were  to  be  called  and 

854;  Gale  v.  People,  26  Mich.  157,  160,  made  to  testify  at  the  instance  of  the 

161;  Elliott  v.  State,  34  Neb.  48,50;  state."     State   v.  Lurch,   12  Ore.  99, 

State  v.  Turner,  110  Mo.  196,  201,  19  103. 

8.  W.  Rep.  645.  2 Taylor  v.  Com.  (Ky.,  1892),  18  S. 

1  State   v.    Saunders,   14   Ore.   300,  W.  Rep.  852. 

316;  State  v.  McLaughlin,  76  Mo.  320,  3  State  v.  Home,  9  Kan.  119,128; 

321 ;  People  v.  McGungill,  41  Cal.  429,  State  v.  Johnson,  72  Iowa  393,  396, 397 ; 

436 ;  State  v.  Patterson,  88  Mo.  88,  91.  State  v.  Cohn,  9  Nev.  179 ;  Com.  v.  Eis- 

"The  humane  provision  of  the  law  that  enhower  (Pa.,  1897),  37  Atl.  Rep.  521. 

a  party  shall  not  be  compelled  to  be  a  Where  the  accused  has  denied  on  the 

witness   against  himself  remains    in  direct  examination  that  he  wrote  an 

full    force,  and   is   as  effectually  vio-  instrument,  he  may  be  compelled  on 

lated  when  the  cross-examination  of  cross-examination  to  write  the  words 

the  accused  is  extended  beyond  the  on  paper.    United  States  v.  Mullaney, 

facts  to  which  he  has  testified   as  it  32  Fed.  Rep.  370,  371. 


80  CRIMINAL    EVIDENCE.  §  65 

dential  statements  made  to  an  attorney,  physician  or  priest. 
He  can  not,  therefore,  be  made  to  divulge  communications 
made  by  him  to  his  counsel,  or  advice  received  during  the  ex- 
istence of  the  relation  of  attorney  and  client.1  The  privilege 
is  for  the  protection  of  the  client  and  may  be  waived  by  him,2 
but  the  waiver  must  be  express  and  unequivocal.3 

It  can  not  be  waived  by  third  persons  because  in  privity 
with  him.4  The  fact  that  the  accused  denies  upon  the  witness 
stand  that  he  made  a  certain  statement  to  his  attorney  will  not 
authorize  proof  of  it  by  the  latter's  testimony.5 

§  65.  Conclusiveness  of  answers — Impeachment  by  other 
witnesses. — The  rule  forbidding  the  contradiction  of  the  an- 
swers to  irrelevant  questions  on  cross-examination  applies  to 
the  answers  of  the  accused.6  This  rule,  however,  does  not 
preclude  the  contradiction  of  answers  to  relevant  questions 
put  on  the  cross-examination,  merely  because  contradiction 
tends  indirectly  to  impeach  the  credibility  of  the  witness.  The 
accused  may  be  asked  if  he  did  not,  at  a  particular  time  and 
place,  give  a  contradictory  account  of  relevant  facts.  If  he  de- 
nies he  has  done  so,  he  may  be  contradicted  by  the  evidence  of 
some  one  who  heard  him,  though  the  probable  result  of  this  is 
not  so  much  to  prove  relevant  facts  as  to  show  the  accused 
has  contradicted  himself.  So  the  state  may  prove  contradic- 
tory statements  voluntarily  made  by  the  accused  before  the  cor- 

1  Duttenhofer  v.  State,  34  Ohio  St.  5  State  v.  James,  34  S.  Car.  49,  58. 
91 ,  95.  "The  true  view  seems  to  be  that  com- 

2  The  privilege  is  waived  if  the  wit-  munications  which  the  lawyer  is  pre- 
ness  voluntarily  discloses,  during  the  eluded  from  disclosing  the  client  can 
direct  examination,  the  facts  in  the  not  be  compelled  to  discover."  State 
communication.      State    v.    Tall,    43  v.  White,  19  Kan.  445,  447. 

Minn.  273,  276;  People  v.  Gallagher,  6  Marx  v.  People,  63  Barb.  (N.  Y.) 

75  Mich.  512,  515.  618,  619 ;  People  v.  Ware,  29  Hun  473, 

*  State  v.  James,  34  S.  Car.  49,  58 ;  475,  92  N.  Y.  653 ;  George  v.  State,  16 

Wharton  on  Cr.  Ev.,  500.     See  also  Neb.  318,  320,  321;  McKeone  v.  Peo- 

§§  175,  176,  178.  pie,  6  Colo.  346,  348. 

4  State  v.  James,  34  S.  Car.  579,  13 
S.  E.  Rep.  325. 


§  66  THE  ACCUSED  AS  A  WITNESS.  81 

oner,1  or  on   the   preliminary  examination,  or  upon  a  former 
trial  for  the  same  offense.2 

§  GQ.  The  had  character  of  the  accused — When  admissible 
to  impeach  him. — Whether  the  accused  may  be  impeached  by 
proving-  bad  character  to  the  same  extent  as  other  witnesses 
depends  largely  upon  the  statutes  rendering  him  competent  as 
a  witness.  His  bad  character  for  veracity  alone  may  always 
be  shown  to  impeach  him.3  But  here  a  difficult  question  sug- 
gests itself.  Can  the  general  bad  character  of  the  accused  be 
shown  solely  for  the  purpose  of  impeaching  him  as  a  witness, 
in  case  he  has  not,  as  the  accused,  first  offered  evidence  of  good 
character?4  Where  the  statute  expressly  provides  that  the  ac- 
cused, when  testifying  as  a  witness,  subjects  himself  to  the 
same  rules  of  examination  as  any  witness,  the  weight  of  the 
cases  maintains  the  affirmative,  at  least  in  those  states  where 
the  general  bad  character  of  a  witness  may  be  shown.5  If, 
however,  the  statute  does  not  expressly  provide  that  the  ac- 
cused may  be  examined  or  impeached  as  other  witnesses,  his 
general  character  is  protected  from  attack. 

Logically  a  defendant,  who  elects  to  testify,  occupies  the 
double  position  of  accused  and  witness.  He  combines  in  his 
person  the  rights  and  privileges  of  each  ;  for  it  is  inconceiva- 
ble that  the  statute,  which  made  him  a  witness,  was  intended 
to  deprive  him  of  any  of  the  constitutional  or  other  privileges 
which  he  enjoyed  as  the  accused  before  its  passage.6  Hence, 
even  where  the  general  character  of  a  witness  can  be  attacked, 
his  character,  when  he  has  not  first  put  it  in  issue,  can  not  be 

1  Woods  v.  State,  63  Ind.  353,  358;  130,  131;  State  v.  Beal,  68  Ind.  345, 
Lovett  v.  State,  60  Ga.  257,  260;  Peo-    346. 

pie  v.  Kelley,  47  Cal.  125 ;  State  v.  Mul-  4  See  §  76  et  seq. 

lins,  101  Mo.  514,  519;  State  v.  Gil-  5  State  v.  Kirkpatrick,  63  Iowa  554, 

man,  51  Me.  206,  218-226.  559;  Drew  v.   State,  124  Ind.   9,  13; 

2  Dumas  v.  State,  63  Ga.  600,  601,  Peck  v.  State,  86  Tenn.  259,  266;  State 
604;  State  v.  Dyer  (Mo.,.  1897),  40  v.  Cohn,  9Nev.  179;  Connors  v.  Peo- 
S.  W.  Rep.  768.  pie,  50  N.  Y.  240;  State  v.  McGuire, 

8  Adams  v.  People,  9  Hun  (N.  Y.)     15  R.  I.  23. 
89,  97 ;  Fletcher  v.  State,  49  Ind.  124,        6  State  v.  Beal,  68  Ind.  345,  346. 
6— Cr.  Ev. 


82  CRIMINAL    EVIDENCE.  §  67 

impeached  merely  because  he  testifies.1  Sometimes  it  is  pro- 
vided that  his  prior  conviction  of  felony  may  be  proved,2  when 
he  testifies,  but  not  his  j)lea  of  guilty  without  sentence.3 

§  67.    Commenting  on  the  failure  of  the  accused  to  testify. — 

It  is  usually  provided  by  statute  that  the  failure  of  the  accused 
to  testify  in  his  own  behalf  must  not  be  considered  by  the 
jury  as  a  circumstance  against  him,  nor  can  it  be  alluded  to, 
or  commented  on,  by  counsel.  Under  such  a  statute,  the  court 
should  promptly  interrupt  a  prosecuting  counsel  who  shall,  in 
his  argument,  attempt  to  make  use  of  the  fact  that  the  prisoner 
has  not  taken  the  witness  stand  ;  and  should  charge  that  the 
prisoner's  silence  creates  no  presumption  of  his  guilt,4  and 
that  it  is  the  duty  of  the  jury  to  exclude  his  silence  entirely 
from  their  consideration.  But,  in  order  that  a  verdict  of 
guilty  should  be  set  aside,  because  comment  has  been  per- 
mitted upon  the  failure  of  the  accused  to  testify,  an  objection 
must  be  promptly  made,  the  attention  of  the  court  obtained, 
and  a  ruling  had  thereon.5 

Strict  compliance  with  the  statute  is  usually  required.6  The 
prosecuting  attorney  must  not  be  allowed  to  evade  it  by  in- 
direct and  covert  allusions,  as  by  calling  the  jury's  attention 
to  the  fact  that  none  of  the  neighbors  of  a  person  on  trial  for 
the  murder  of  his  wife  were  informed  by  him  how  she  came 
to  her  death,7  or  by  stating  to  the  jury  that,  if  the  accused  shall 


•  Fletcher  v.  State,  49  Ind.  124,  131-  In  Ruloff  v.  People,  45  N.  Y.  213,  222, 

133;    State   v.    Kirkpatrick,   63   Iowa  and  Com.  v.  Hanley,  140  Mass.  457,  it 

554,  559.  was  held  that  any   allusion  by  the 

2  State  v.  McGuire,  15  R.  I.  23.  court  in  its  charge  to  the  fact  that  the 

3  Marion  v.  State,  16  Neb.  349,  361.  defendant  has  not  testified  was  error. 

4  Wilson  v.  United  States,  149  TJ.  S.  5  Matthews  v.  People,  6  Colo.  App. 
60,  13  S.  Ct.  765 ;  Showalter  v.  State,  456,  41  Pac.  Rep.  839 ;  Metz  v.  State, 
84  Ind.  562,  566;  Staples  v.  State,  89  46  Neb.  547,  65  N.  W.  Rep.  190;  Mar- 
Term.  231 ;  People  v.  Doyle,  58  Hun  tin  v.  State,  79  Wis.  165,  175,  48  N.  W. 
535,  536 ;  State  v.  Mosley,  31  Kan.  355,  Rep.  119,  122. 

357;   State  v.   Mathews,  98  Mo.  125,  6  Austin  v.  People,  102  111.  261. 

131;  State  v.  Tennison,  42  Kan.  330,  'State  v.  Moxley,  102  Mo.  374,  393, 

332 ;  Quinn  v.  People,  123  111.  333,  347.  14  S.  W.  Rep.  969. 


§.68 


THE    ACCUSED    AS    A    WITNESS. 


83 


fail  to  testify,  the  law  precludes  the  state  from  commenting 
upon  his  failure.1 

But  not  every  reference  to  the  law  is  prohibited.  The  true 
test  is,  was  the  reference  calculated  or  intended  to  direct  the 
attention  of  the  jury  to  the  defendant's  neglect  to  avail  him- 
self of  his  right?2 

Where  such  comment  is  made  and  the  court,  though  rebuk- 
ing the  speaker,  refuses,  or  even  omits  to  charge  that  it  should 
be  disregarded,  a  new  trial  must  be  had.3 


§  68.  Exclusion  or  withdrawal  of  comments  on  failure  to 
testify — Failure  to  call  other  witnesses,  or  to  testify  to  in- 
criminating facts. — Upon  the  question  whether  a  new  trial 
should  be  granted  for  a  comment  upon  the  failure  of  the  ac- 
cused to  testify  when  the  district  attorney  withdraws  his 
remarks,  or  the  court  excludes  them  and  also  instructs  the  jury 
that  the  silence  of  the  accused  is  not  a  circumstance  against 
him,  the  authorites  are  divided.  Many  cases  hold  that  under 
these  circumstances  the  error  is  cured,4  though  others  hold 
that  a  new  trial  should  be  had  though  the  prosecuting  attorney 


Jordan  v.  State,  29  Tex.  App.  595. 
Permitting  the  prosecuting  attorney  to 
say,  in  response  to  the  quotation  by 
the  defendant  "that  rape  is  a  crime 
easily  charged,  hard  to  be  proved 
and  difficult  to  be  defended,"  that, 
"since  the  legislature  passed  a  statute 
giving  the  defendant  the  right  to 
testify  in  his  own  behalf,  it  can  no 
longer  be  said  as  a  maxim  of  law  that 
'rape  is  a  crime  hard  to  be  defended'  " 
is  reversible  error.  Austin  v.  People, 
102  111.  261,  263.  So  it  was  error  for 
the  district  attorney  to  say  to  counsel 
for  defendant,  "You  know  the  laws 
of  this  state  permit  the  defendant  to 
remain  silent,  and  it  would  be  im- 
proper and  cowardly  for  •  me  to  com- 
ment upon  it,  and  it  is  not  my  inten- 
tion to  evade  the  spirit  or  letter  of  the 
law."  State  v.  Holmes  (Minn.,  1896), 
68  N.  W.  Rep.  11. 


2  Watt  v.  People,  126  111.  9,32;  State 
v.  Mosley,  31  Kan.  355,  357. 

3  State  v.  Banks,  78  Me.  490,  492,  7 
Atl.  Rep.  269;  People  v.  Brown,  53 
Cal.  66,  67;  State  v.  Chisnell,  36  W. 
Va.  659,  667,  15  S.  E.  Rep.  412;  Com. 
v.  Harlow,  110  Mass.  411,  412;  Hunt 
v.  State,  28  Tex.  App.  149,  12  S.  W. 
Rep.  737;  State  v.  Moxley,  102  Mo. 
374,  393,  14  S.  W.  Rep.  969;  People  v. 
Rose,  52  Hun  33, 36, 4  N.  Y.  Supp.  787. 

4 People  v.  Hess,  85  Mich.  128;  State 
v.  Chisnell,  36  W.  Va.  659,  667,  671, 
15  S.  E.  Rep.  412,  414,  416 ;  Crandall  v. 
People,  2  Lans.  (N.  Y.)  309;  Calkins 
v.  State,  18  Ohio  St.  366,  373;  Com.  v. 
Worcester,  141  Mass.  58,  61 ;  State  v. 
Cameron,  40  Vt.  555,  565;  Ruloff  v. 
People,  45  N.  Y.  213,  222;  Staples  v. 
State,  89  Tenn.  231 ;  Com.  v.  Harlow, 
110  Mass.  411,  412. 


84  CRIMINAL    EVIDENCE.  §  68 

is  rebuked  and  the  jurors  are  positively  instructed  to  dismiss 
the  comments  from  their  minds.1 

The  latter  view  would  seem  most  consistent  with  reason  and 
common  sense.  Mere  silence  under  an  accusation  of  crime, 
where  an  opportunity  for  denial  is  afforded,  is  sure  to  create 
an  inference  of  guilt  in  the  mind  of  any  one,  though  no  oral 
comment  is  made  thereon.  It  is  absurd  therefore  to  suppose 
that  any  judicial  declaration  will  remove  the  effect  of  language 
which  has  found  a  lodgment  in  the  minds  of  the  jurors,  spent 
its  force  and  subserved  its  purpose  of  creating  a  prejudice 
against  the  accused.2 

The  exemption  from  unfavorable  comment  is  applicable  only 
when  the  accused  wholly  refrains  from  testifying.  If  he  volun- 
tarily goes  upon  the  stand  he  waives  this  exemption,  and  the 
state  may  comment  upon  his  testimony  as  fully  as  on  that  of  any 
other  witness,  and  may  call  attention  to  his  silence  and  demeanor 
while  there,  or  at  the  preliminary  examination,3  to  his  refusal 
to  answer  incriminating  questions  ;  or  to  deny  prominent  and 
damaging  facts  of  which  he  must  have  some  personal  knowl- 
edge.4 

The  prosecution  may  always  freely  comment  on  the  failure 
of  the  accused  to  call  particular  witnesses,  or  witnesses  for  a 
particular  purpose,  as,  for  example,  to  account  for  his  where- 
abouts on  the  day  of  the  crime.5     Hence,  if  the  wife  of  the 

1  States.  Holmes  (Minn.,  1896),  68  N.  Cotton  v.  State,  87  Ala.  103,  107;  Lee 
W.  Eep.  11 ;  Sanders  v.  State,  73  Miss.  v.  State,  56  Ark.  4,  19  S.  W.  Rep.  16; 
444,  18  So.  Rep.  541;  Reddick  w.  State,  State  v.  Tatman,  59  Iowa  471,  475; 
72  Miss.  1008;  Angelo  v.  People,  96  State  v.  Ober,  52  N.  H.  459,  463;  Bras- 
Ill.   209;    Quinn   v.   People,    123   111.  hears  v.  State,  58  Md.  563,  568;  Toops 


333,  346;  Long  v.  State,  56  Ind.  182 
Showalter  v.  State,  84  Ind.  562,  566 
Hunt  v.  State,  28  Tex.  App.  149,  150 


State,  92  Ind.  13,  16;  People  v. 
Stover,  56  N.  Y.  315,  320,  321 ;  Com.  v. 
Mullen,  97  Mass.  545;  McFadden  v. 


State  v.  Brownfield,  15  Mo.  App.  593.  State,  28  Tex.  App.  241,  245.     Contra, 

2  "As  well  try  to  brush  out  with  the  where  it    is    expressly  provided  by 

hand  a  stain  of  ink  on  white  linen."  statute  that  the  cross-examination  of 

Quinn  v.   People,    123   111.   333,347;  the  accused  must  be  limited  to  matters 

State  v.  Cameron,  40  Vt.  555,  565.  brought  out  on  the  direct.     State  v. 

3Taylor  v.  Com.  (Ky.,  1896),  34  S.  Graves,  95  Mo.  510,  516. 

W.  Rep.  227.  5 Sutton  v.   Com.,   85  Va.  128,  135. 

4Comstockv.  State,  14  Neb.  205,  209;  Gf.  Com.  v.  Harlow,  110  Mass.  411, 

State  v.  Anderson,  89  Mo.  312,320;  412. 


§09 


THE  ACCUSED  AS  A  WITNESS. 


85 


accused  is  competent,  the  state  may  comment  upon  the  failure 
of  the  accused  to  call  her.1 


§  G9.    Accomplices  defined — Province  of  court  and  jury. — 

A  person  who,  solely  for  the  purpose  of  discovering  criminals 
and  procuring  their  punishment,  communicates  with  or  aids 
them,  without  any  criminal  intent,  is  not  an  accomplice.  The 
rules  which  are  here  laid  down  do  not  therefore  apply  to  his 
testimony.2 

The  jury  is  not  called  on  to  determine  the  guilt  of  a  witness 
who,  it  is  alleged,  is  an  accomplice.  The  rule  that  the  evidence 
of  an  accomplice  must  be  corroborated  does  not  require  that 
his  guilt  as  a  participant  shall  first  be  established  as  an  inde- 
pendent conclusion  and  beyond  a  reasonable  doubt.3  If  a 
criminal  connection  with  the  crime  is  admitted  by  the  witness, 


1  Hall  v.  State  (Tex.,  1893),  22  S.  W. 
Rep.  141 ;  Taylor  v.  Com.,  90  Va.  109, 
17  S.  E.  Rep.  812,816;  Mercer  v.  State, 
17  Tex.  App.  452,  457.  But  if  she  is  not 
competent,  the  state  should  not  be 
allowed  to  comment  on  her  absence. 
State  v.  Hatcher,  29  Ore.  309,  44  Pac. 
Rep.  584;  State  v.  Taylor,  134  Mo.  109, 
35  S.  W.  Rep.  92.  Where  evidence  is 
equally  accessible  and  material  to  the 
state  and  to  the  accused,  its  non-pi-o- 
duction  by  the  accused,  even  though 
it  may  affirmatively  appear  that  he 
made  no  attempt  to  procure  it,  creates 
no  presumption  against  him.  The 
omission  can  not  be  considered  by  the 
jury.  State  v.  Rosier,  55  Iowa  517. 
But  where  evidence  which,  if  pro- 
duced, would  controvert  or  explain 
some  incriminating  facts  proved 
against  him,  and  which  is  also  clearly 
within  his  knowledge  and  his  power 
to  obtain,  is  not  produced  by  the  ac- 
cused, the  jury  may  consider  the  fact 
in  determining  the  credibility  of  the 
evidence  against  him.  State  v.  Grebe, 
17  Kan.  458;  People  v.  McWhorter,  4 


Barb.  (N.  Y.)  438,  440;  Rice  v.  Com., 
102  Pa.  St.  408. 

2 Com.  v.  Downing,  4  Gray  (Mass.) 
29 ;  Com.  ».  Baker,  155  Mass.  287,  291 ; 
People  v.  Farrell,  30  Cal.  316,  317; 
Campbell  v.  Com.,  84  Pa.  St.  187; 
Harrington  v.  State,  36  Ala.  236,  242; 
State  v.  Brownlee,  84  Iowa  473,  51  N. 
W.Rep.  25;  Com.  v.  Willard,  22  Pick. 
(Mass.)  476.  When  the  accused  was 
decoyed  into  crime  by  a  police  detect- 
ive, Cooley,  J.,  in  permitting  the  ac- 
cused to  make  a  full  explanation, 
said:  "The  officer  was  apparently 
assisting  or  conniving  in  the  crime 
charged,  and  though  he  may  have 
done  this,  as  he  says,  not  by  way  of 
enticement,  but  only  by  allowing  him 
the  opportunity  he  sought  and  re- 
quested, yet  it  placed  him  in  an 
equivocal  position,  and  the  jury  ought 
to  have  all  the  light  the  former  deal- 
ings of  the  parties  would  throw  upon 
the  transactions."  An  accessory  after 
the  fact  is  not  an  accomplice.  State  v. 
Umble,  115  Mo.  452,  22  S.  W.  Rep.  378, 
380. 

3  Com.  v.  Ford,  111  Mass.  394,  395. 


8G 


CRIMINAL    EVIDENCE. 


§70 


the  court  may  charge  that  the  witness  is  an  accomplice.  If  the 
evidence  is  conflicting  on  this  point,  the  matter  should  be  left 
to  the  jury.1 

§  70.   Accomplices  when  jointly  indicted — Witnesses  for  each 

other. — Accomplices  were  always,  even  in  the  absence  of  statute, 
competent  witnesses  for  each  other  if  separately  indicted.2 
Where  accomplices  are  jointly  indicted,  a  different  rule  is  rec- 
ognized. The  fact  that  they  are  tried  separately  does  not,  in 
the  absence  of  a  permissive  statute,  render  one  competent  as  a 
witness  for  the  others,  though,  if  jointly  indicted,  any  one  of 
them  may  testify  against  the  others.8 

An  accomplice  can  not  testify  in  favor  of  one  jointly  in- 
dicted while  the  indictment  is  pending  over  him.  The  crimi- 
nal charge  against  him  must  be  finally  disposed  of  before  he 
can  testify  for  a  co-defendant.4  If  the  state,  on  the  trial  of  a 
joint  indictment,  closes  its  case  without  producing  evidence  of 
the  guilt  of  any  defendant  sufficient  to  goto  the  jury,  the  court 
must  direct  his  acquittal.     He  is  then  a  competent  witness  for 


1  People  v.  Bolanger,  71  Cal.  17,  20; 
Williams  v.  State,  33  Tex.  Cr.  Rep. 
128,  25  S.  W.  Rep.  629;  Zollicoffer  v. 
State,  16  Tex.  App.  312,  317 ;  White's 
Case,  30  Tex.  App.  652,  657. 

2  United  States  v.  Henry,  4  Wash. 
C.  C.  428,  429;  State  v.  Umble,  115 
Mo.  452,  22  S.  W.  Rep.  378;  State  v. 
Riney  (Mo.,  1897),  38  S.  W.  Rep.  718; 
Lucre  v.  State,  7  Baxter  (Tenn.)  148, 
150;  People  v.  Donnelly,  2  Park  Cr. 
Rep.  182;  State  v.  Walker,  98  Mo.  95, 
102;  McKenzie  v.  State,  24  Ark.  636, 
638.  Contra,  by  statute,  Crutchfield  v. 
State,  7  Tex.  App.  65,  67. 

3  State  v.  Jones,  51  Me.  125,  126; 
Com.  v.  Marsh,  10  Pick.  57.  "A  dis- 
tinction is  made  between  the  compe- 
tency of  a  co-defendant,  jointly  in- 
dicted, as  a  witness  for  the  state  and 
for  his  fellow-prisoners.  The  exclu- 
sion of  his  evidence  when  he  is  called 
for  a  co-defendant  is  based  largely  on 


consideration  of  public  policy,  for  each 
would  try  to  swear  the  other  inno- 
cent." Benson  v.  United  States,  146 
U.  S.  325,  335,  13  Sup.  Ct.  Rep.  60. 

4  Collier  v.  State,  20  Ark.  36;  State 
v.  Dunlop,  65  N.  Car.  288;  Ballard  v. 
State,  31  Fla.  266,  12  So.  Rep.  865, 
870;  Moss  v.  State,  17  Ark.  327,330; 
United  States  v.  Reid,  12  How.  (U.  S.) 
361 ;  Wixson  v.  People,  5  ParkCr.  Rep. 
119;  Com.  v.  Marsh,  10  Pick.  57;  Peo- 
ple v.  Williams,  19  Wend.  (N.  Y)  377, 
378;  State  v.  Jones,  51  Me.  125,  126. 
In  People  v.  Bill,  10  Johns.  (N.  Y.) 
95,  the  court  says :  "It  appears  to  be 
a  well  settled  though  technical  rule 
that  a  party  to  the  same  indictment 
can  not  be  a  witness  for  his  co-de- 
fendant until  he  has  been  first  ac- 
quitted, or  at  least  convicted.  Whether 
they  be  tried  jointly  or  separately  does 
not  vary  the  rule." 


§71 


THE    ACCUSED    AS    A    WITNESS. 


87 


a  co-defendant.1  Where  the  evidence  against  a  defendant  is 
slight,  the  court  may,  in  its  discretion,  submit  it  to  the  jury- 
separately,  and  on  his  acquittal  he  is  competent  as  a  witness 
for  a  co-defendant.2  But  a  defendant  has  no  absolute  right 
to  insist  that  the  court  shall  submit  the  case  of  any  co-de- 
fendant jointly  tried  to  the  jury,  with  the  view  of  using  him 
as  a  witness  if  acquitted.3 

An  accomplice  who  pleads  guilty,  or  who  is  convicted,  be- 
comes, either  before  or  after  sentence,  a  competent  witness  for 
a  co-defendant  jointly  indicted.4 

§  71.  Accomplices  as  witnesses  for  the  state. — The  general 
common  law  rule  is  that  accomplices  are  competent  witnesses 
against  their  criminal  associates.  This  rule  is  always  applica- 
ble where  accomplices  are  separately  indicted  and  receive  sepa- 
rate trials.5 

Persons  jointly  indicted  are  competent  witnesses  for  the 
prosecution  against  their  associates,  though  jointly  indicted,  if 
they  are  granted  separate  trials.  It  is  enough  that  the  trial  of 
the  accomplice  has  been  postponed,  for  he  may  testify  for  the 
state,  though  the  charge  against  him  has  not  been  disposed  of.6 


1  State  v.  Jones,  51  Me.  125,  126; 
People  v.  Bill,  10  Johns.  (N.  Y.)  95; 
Bacon  v.  State,  22  Fla.51,  85;  McKen- 
zie  v.  State,  24  Ark.  636,  638. 

2  People  v.  Vermilyea,  7  Cow.  (N.Y.) 
369,  382. 

3 Com.  v.  Eastman,  1  Cnsh.  (Mass.) 
189,  218;  State  v.  Jones,  51  Me.  125, 
126;  Reg.  v.  Ford,  1  C.  &  Marsh.  111. 

4  State  v.  Jones,  51  Me.  125,  126; 
Com.  v.  Marsh,  10  Pick.  (Mass.)  57, 
58 ;  State  v.  Stotts,  26  Mo.  307 ;  Wixson 
v.  State,  5  Park  Cr.  Rep.  119.  In  Wix- 
son v.  People,  5  Park  Cr.  Rep.  119,  on  p. 
126,  the  court,  by  Knox,  J.,  thus  sum- 
marizes the  law :  "  When  the  persons 
indicted  are  all  put  on  trial  together, 
neither  can  be  a  witness  for  or  against 
the  other,  but  when  they  are  tried 
separately,  though  jointly  indicted, 
the  people  may  call  those  not  on  trial, 


though  not  convicted  or  acquitted  or 
otherwise  discharged,  with  the  per- 
mission of  the  court,  but  they  can  not 
be  called  as  witness  for  each  other, 
though  separately  tried,  while  the  in- 
dictment is  pending  against  them.  If 
acquitted  they  may  be  examined,  and 
even  if  convicted,  unless  it  be  for  a 
crime  which  disqualifies,  and  then 
sentence  must  have  followed  the  con- 
viction. When  all  are  tried  together, 
if  the  people  desire  to  swear  an  ac- 
complice, he  must  in  some  way  be 
first  discharged  from  the  record." 

5  Allison  v.  State,  14  Tex.  App.  402; 
United  States  v.  Benson,  146  TJ.  S.  325, 
327 ;  United  States  v.  Henry,  4  Wash. 
C.  C.  428. 

6  State  v.  Barrows,  76  Me.  401,  407; 
Benson  v.  United  States,  146  U.  S. 
325,   333,   337;   Wixson   v.   People,  5 


88 


CRIMINAL    EVIDENCE. 


§71 


Where  the  disability  of  convicts  to  testify  has  been  removed  by 
statute,  no  valid  reason  exists  for  excluding  the  evidence  of  an 
accomplice  who  has  been  convicted,  or  who  has  pleaded  guilty, 
against  one  jointly  indicted,  but  tried  separately.1 

Accomplices  jointly  indicted  and  also  jointly  tried  are  not 
competent  witnesses  against  each  other.  But  the  court  may 
always  order  a  nolle  prosequi  upon  the  application  of  the  district 
attorney,2  or  accept  a  plea  of  guilty  with  the  express  or  implied 
promise  of  immunity.3  The  admission  of  the  testimony  of  an 
accomplice  who  is  still  under  indictment  against  one  who  is 
jointly  indicted  is  largely  in  the  judicial  discretion.4  The 
court  exercising  this  discretion  should  bear  in  mind  that  the 
evidence  is  receivable  mainly  because  of  necessity  and  public 
polic}'  and  in  furtherance  of  justice.  The  question  to  be  con- 
sidered is  not  only  whether  it  is  possible  to  convict  without 
the  testimony  of  the  accomplice,  but  whether  it  is  possible  to 
convict  if  he  does  testify.  If  sufficient  evidence  has  been  re- 
ceived to  sustain  a  conviction  without  that  of  the  accomplice, 
or  if,  on  the  other  hand,  the  evidence  already  in  is  so  weak, 
conflicting  and  lacking  in  corroborative  force  that,  even  with 


Park.  Cr.  Rep.  119 ;  Carroll  v.  State,  5 
Neb.  31,  35;  Jones  v.  State,  1  Ga.  610, 
617;  State  v.  Brien,  32  N.  J.  L.  414, 
416,  417;  Noyes  v.  State,  41  N.  J.  L. 
418,  429;  Sparks  v.  Com.,  89  Ky.  644; 
Allen  v.  State,  10  Ohio  St.  287 ;  Brown 
v.  State,  18  Ohio  St.  496,  509;  State  v. 
Thaden,  43  Minn.  325,  327 ;  Conway  v. 
State,  118  Ind.  482,  485;  Com.  v. 
Brown,  130  Mass.  279.  Contra,  State 
v.  Mathews,  98  Mo.  125;  Day  v.  State, 
27  Tex.  App.  143;  State  v.  Chyo  Chi- 
agk,  92  Mo.  395,  and  cf.  Hawk.  P.  C. 
2,  ch.  46;  1  Hale  P.  C.  305;  Rose  Cr. 
Ev.  130,  140;  2  Russ  Cr.  957;  Whart. 
Cr.  Ev.,  §439. 

1  People  v.  Whipple,  9  Cow.  (N.  Y.) 
707,709 ;  South  v.  State,86  Ala.  617, 620 ; 
Taylor  v.  People,  12  Hun  (N.  Y.)  212; 


State  v.  Jackson,  106  Mo.  174;  State  v. 
Minor,  117  Mo.  302,  305 ;  Rex  v.  West- 
beer,  1  Leach  Cr.  L.  14;  Wisdom  v. 
People,  11  Colo.  170. 

2  State  v.  Walker  98  Mo.  95,  9  S.  W. 
Rep.  646;  Reg.  v.  Owen,  9  Carr.  &  P. 
83;  Linsday  v.  People,  63  N.  Y.  143,. 
154;  State  v.  Graham,  41  N.  J.  L.  15, 
19;  Underwood  v.  State  (Tex.,  1897), 
41  S.  W.  Rep.  618. 

3  State  v.  Lyon,  81  N.  Car.  600; 
United  States  v.  Ford,  99  U.  S.  594; 
State  v.  Jackson,  106  Mo.  174,  177. 

4  Linsday  v.  People,  63  N.  Y.  143, 
153;  Com.  v.  Brown,  130  Mass.  279. 
The  judicial  consent,  if  given,  need 
not  be  embodied  in  an  order,  or  indeed 
in  any  particular  form.  Linsday  v. 
People,  63  N.  Y.  143,  153. 


§  72  THE    ACCUSED    AS    A    WITNESS.  89 

his  testimony,  no  reasonable  probability  arises  that  a  convic- 
tion will  result,  the  court  should  reject  his  evidence.1 

§  72.    Immunity  of  accomplice  when  testifying  for  the  state. 

— An  accomplice  who,  confessing  his  own  guilt,  offers  to  testify 
against  an  associate  has  no  legal  right,  in  the  absence  of  statute, 
to  demand  exemption  from  a  prosecution  for  the  crime  he  has 
confessed.2  But  an  accomplice  whose  evidence,  while  placing 
him  where  he  could  be  easily  convicted,  has  contributed  to 
the  conviction  of  another,  certainly  has  a  strong  moral  and 
equitable  claim  to  clemency,  and  if  he  be  subsequently  con- 
victed of  that  crime,  his  moral  claim  should  be  recognized  by 
the  pardoning  power.  If  his  testimony  was  procured  by  an 
express  promise  of  immunity,  or,  during  interviews  with  the 
prosecuting  attorney,  principles  of  justice  would  demand,  and 
the  prevalent  practice  would  sanction,  the  judicial  recommenda- 
tion of  his  case  to  the  executive  that  his  pardon  may  be  ob- 
tained.8 He  may  be  asked,  in  order  to  bring  out  his  motives 
and  feelings  towards  the  accused,  whether  he  has  not  confessed 
his  guilt  and  said  he  would  not  be  punished  alone.4 

1  State  v.  Pratt,  98  Mo.  482;  Ray  v.  ment  against  him,  nor  avail  himself 
State,  1  Greene  (Iowa)  316;  Reg.  v.  of  it  upon  his  trial;  for  it  is  merely  an 
Sparks,  Fost.  &  Fin.  388.  equitable  title  to  the  mercy  of  the  ex- 

2  Runnels  v.  State,  28  Ark.  121,  123;  ecutive,  subject  to  the  conditions 
United  States  v.  Ford,  99  TJ.  S.  594,  stated,  and  can  only  come  before  the 
605;  United  State  v.  Hinz,  35  Fed.  court  by  way  of  application  to  put  off 
Rep.  272,  279,  280.  the  trial  in  order  to  give  the  prisoner 

3  Long  v.  State,  86  Ala.  36,  44 ;  State  time  to  apply  to  the  executive  for  that 
v.  Graham,  41  N.  J.  L.  15,  16,  20;  State  purpose."  United  States  v.  Ford,  99 
v.  Lyon,  81  N.  Car.  600,  602.  "Ac-  U.  S.  594,  and  Ex  parte  Irvine,  74  Fed. 
complices,  not  convicted  of  an  infa-  954.  The  defense  may  show  that  an 
mous  crime,  when  separately  tried  are  accomplice  testifying  for  the  state 
competent  witnesses  for  or  against  does  so  with  the  expectation  of  gain 
each  other.  The  universal  usage  is  or  immunity,  and  it  is  immaterial 
that  such  a  party,  if  called  and  ex-  whether  there  has  been  any  actual 
amined  by  the  state  on  the  trial  of  his  agreement  to  that  effect  with  the  pub- 
associate  in  guilt,  will  not  be  prose-  lie  prosecuting  officer  or  not.  Allen 
cuted  for  the  same  offense,  provided  v.  State,  10  Ohio  St.  287 ;  People  v. 
it  appears  that  he  acted  in  good  faith  Langtree,  64  Cal.  256;  Tullis  v.  State, 
and  that  he  testified  fully  and  fairly.  39  Ohio  St.  200. 

But  it  is  equally  clear  that  he  can  not  4  Hamilton  v.  People,  29  Mich.  414, 
plead  such  fact  in  bar  of  an  indict-     195,  197. 


90 


CRIMINAL    EVIDENCE. 


§73 


Aii  accomplice,  who,  with  full  knowledge  of  his  privilege 
from  answering  incriminating  questions,  voluntarily  answers 
such  questions,  can  not  withhold  further  evidence  under  a 
claim  of  privilege.1  So  he  may  be  compelled  to  answer  in- 
criminating questions  even  though  he  shall  claim  the  privilege, 
if,  by  statute,  the  use  against  the  witness  of  testimony  given 
under  such  circumstances  is  prohibited.2  And  the  voluntary 
confession  of  an  accomplice  made  in  expectation  of  testifying 
against  an  associate  may  always  be  used  against  him,  on  his 
trial  for  the  crime  confessed,  if  he  refuses  to  testify.3 

§  73.  Credibility  and  corroboration  of  accomplices. — No  pre- 
sumption of  law  exists  against  the  credibility  of  the  evidence 
of  an  accomplice,  so  that  at  common  law  a  conviction  may  be 
had  on  his  evidence  alone.4 

But  the  jury  is  usually  warned  by  the  court  against  hasty 
confidence  in  the  testimony  of  an  accomplice,  and  instructed 
that  great  caution  must  be  employed  in  the  reception  and  con- 
sideration of  accomplice  evidence,  and  that  it  should  be  sub- 
mitted to  the  strictest  scrutiny.5     So,  too,  juries  are  generally 


1  Alderman  v.  State,  4  Mich.  422, 
423;  Com.  v.  Price,  10  Gray  (Mass.) 
472,  476. 

2  State  v.  Quarles,  13  Ark.  307:  Bed- 
good  v.  State,  115  Ind.  275,  17  N.  E. 
Rep.  621,  623. 

3  United  States  v.  Hinz,  35  Fed.  Rep. 
272,  277. 

4 1  Hale  P.  C.  303,  304 ;  Charnock's 
Case,  12  How.  St.  Tr.  1377,  1454;  Rex 
v.  Rudd,  Cowp.  331;  Rex  v.  At- 
wood,  2  Leach  C.  L.  521 ;  Durham's 
Case,  2  Leach  C.  L.  538;  State  v. 
Thompson,  47  La.  An. 1597,  18  So.  Rep. 
621  ;  State  v.  Donnelly, 130  Mo.  642,  32 
S.  W.  Rep.  1124;  Lawhead  v.  State,  46 
Neb.  607,  65  N.  W.  Rep.  779;  Bacon 
v.  State,  22  Fla.  51,  79;  State  v.  Har- 
kins,  100  Mo.  666;  People  v.  Dyle,  21 
N.  Y.  578,  579;  Wisdom  v.  People,  11 
Colo.  170,  174;  Rountree  v.  State,  88 
Ga.  457, 458 ;  Wixson  v.  People,  5  Park. 
Cr.  Rep.  119,  128;   People  v.  O'Brien, 


60  Mich.  8,  14;  Linsday  v.  People,  63 
N.  Y.  143,  154;  State  v.  Miller,  97 
N.  Car.  484,  487;  Olive  v.  State,  11 
Neb.  1,  30;  Com.  v.  Holmes,  127  Mass. 
424,  429,  435;  People  v.  Costello,  1 
Den.  (N.  Y.)  83;  Com.  w.  Bosworth, 
22  Pick.  397 ;  Ayers  v.  State,  88  Ind. 
275;  Collins  v.  People,  98  111.  584;  State 
v.  Russell,  33  La.  An.  135. 

5  The  earliest  case  where  corrobora- 
tion was  hinted  at  as  necessary  was 
Smith  and  Davie's  Case,  1  Leach  323 
(A.  D.  1784),  where,  the  prosecution 
being  unable  to  identify  the  criminal, 
the  court  thought  it  dangerous  to  let 
the  case  go  to  the  jury  on  accomplice 
evidence  alone.  See,  also,  Wisdom  v. 
People,  11  Colo.  170, 174 ;  State  v.  Steb- 
bins,  29  Conn.  463 ;  Earll  v.  People,  73 
111.  329;  United  States  v.  Sacia,  2  Fed. 
Rep.  754,  758 ;  United  States  v.  Ybanez, 
53  Fed.  Rep.  536,  540. 


§  74  THE    ACCUSED    AS    A    WITNESS.  91 

advised  that  they  may  acquit  the  accused  if  the  evidence  of 
the  accomplice  is  not  corroborated,  though  a  failure  or  refusal 
to  instruct  to  acquit,  if  his  guilt  is  sustained  solely  by  the  un- 
corroborated evidence,  is  not  error.1  The  credibility  of  wit- 
nesses, whether  accomplices  or  not,  is  for  the  jury  exclusively. 

The  subject  of  the  credibility  of  the  testimony  of  an  accom- 
plice and  the  necessity  for  corroboration  in  order  to  sustain  a 
conviction  are  involved  in  some  confusion.  The  propositions 
that  an  accused  person  may  be  convicted  on  the  evidence  of 
an  accomplice  alone,  and  that  the  testimony  of  an  accomplice 
must  be  corroborated,  are  both  sound,  though  they  involve  a 
seeming  inconsistency.  The  proposition  that  an  accomplice 
must  be  corroborated  does  not  mean  that  there  must  be  cumu- 
lative or  independent  testimony  to  the  same  facts  to  which  he 
has  testified.  So,  evidence  in  a  murder  case  that  a  coat,  belong- 
ing to  deceased,  was  found  in  defendant's  possession  is  proper 
corroboration,  though  the  accomplice  testified  only  to  the  kill- 
ing and  not  to  the  taking  of  the  coat.2 

"  If  the  testimony  of  the  accomplice,  his  manner  of  testify- 
ing, his  appearance  upon  the  witness  stand,  impress  the  jury 
with  the  truth  of  his  statement,  there  is  no  inflexible  rule  of 
law  which  prevents  a  conviction."3 

§  74.  Extent  of  corroboration  required — It  must  be  of  ma- 
terial facts. — From  early  times  it  has  been  the  rule 4  that  the 
corroboration  need  not  include  every  material  fact  testified  to 
by  the  accomplice,  for,  if  he  is  confirmed  in  some  material 
particulars,  the  jury  may  believe  him  in  others.5 

The  jury  are  not  limited  to  believing  the  evidence  of  the  ac- 

1  Archer  v.  State,  106  Ind.  426,  434;  States  v.  Ybanez,  53  Fed.  Rep.  536, 

State  v.  Potter,  42  Vt.  495,  506;  State  540. 

v.  Litchfield,  58  Me.  267,  270;  Ingalls  *  Swallow's  Case,  31   How.   St.  Tr. 

v.  State,  48  Wis.  647,  653;    State  v.  971. 

Miller,  97  N.  Car.  484 ;  Carroll  v.  Com.,  5  State  v.  Allen,  57  Iowa  431 ;  United 

84  Pa.  St.  107,  121;  Wisdoms  People,  States?'.   Howell,  56   Fed.   Rep.   21; 

11  Colo.  170,  174;    Allen  v.  State,  10  United  States  r.  Ybanez,  53  Fed.  Rep. 

Ohio  St.  287,  306.  536, 538, 541 ;  People  v.  Elliott,  106  N.Y. 

2Malachi  v.  State,  89  Ala.  134.  288;  Com.  v.  Holmes,  127  Mass.  424, 

3  Cox  v.  Com.,  125  Pa.  St.  94,  103;  431;  Rex  v.  Addis,  6  C.  &  P.  388;  Com. 

Collins  v.  People,  98  111.  584;  United  v.  Brooks,  9  Gray  299. 


92  CRIMINAL    EVIDENCE.  §  74 

complice  only  upon  those  facts  which  are  actually  proved  by 
other  evidence.  Such  an  absurd  construction  of  the  rule  re- 
quiring corroboration  would  be,  in  effect,  to  receive  the  evi- 
dence and  let  it  go  to  the  jury,  while  practically  forbidding 
them  to  believe  it.  If  independent  corroboration  is  required 
from  other  witnesses,  it  must  refer  to  that  portion  of  the  testi- 
mony which  is  material  to  the  prisoner's  guilt.  It  is  not  nec- 
essary that  the  corroboration  should  be  sufficient  to  prove  the 
crime  or  to  connect  the  defendant  with  it.1  Nor  need  the  cor- 
roboration be  wholly  inconsistent  with  the  theory  of  the  de- 
fense.2 But  the  corroborative  evidence,  whether  consisting  of 
acts  or  admissions,  in  itself  and  without  that  of  the  accomplice, 
must  at  least  tend  to  prove  the  guilt  of  the  accused  by  connect- 
ing him  with  the  crime  ;  for  it  is  a  matter  of  no  importance  to 
corroborate  the  accomplice  on  irrelevant  or  immaterial  details, 
or  to  show  that  he  has  not  perjured  himself  in  stating  matters 
not  pertinent  to  the  issue,  and  upon  which  he  had  no  interest 
to  testify  falsely.3 

The  corroborative  evidence  is  sufficient,  though  it  may  not 
bear  directly  upon  any  particular  fact  which  has  been  stated 
in  the  evidence  of  the  accomplice.4  But  the  corroboration 
must  bear  directly  or  indirectly,  not  upon  the  general  charac- 
ter of  the  accomplice  for  truthfulness,  but  upon  the  question 
whether,  in  this  particular  case  and  upon  the  facts  involved, 
his  testimony  is  reliable  and  worthy  of  credit  by  the  jury  in 
determining  the  guilt  of  the  accused.5     The  rule  of  the  com- 

1  People    v.     Badgley,     16    Wend,  corroboration  in  Com.  v.  Brooks,   9 

(N.  Y.)  53.  Gray  299.     So,  too,  a  declaration  by 

8People  v.  Ogle,  104  N.  Y.  511,  515;  the  defendant  on  his  arrest  that  the 

Porter  v.  State,  76  Ga.  658.  accomplice  had  nothing  to  do  with  the 

3  Com.  v.  Holmes,  127  Mass.  424,  439.  crime,  indicating  that  defendant  knew 

4  Com.  v.  Holmes,  127  Mass.  424, 441 ;  all  about  it.    Com.  v.  O'Brien,  12  Allen 
Scott  v.  State  (Ark.,  1896),  38  S.  W.  (Mass.)  183. 

Rep.  339;  United  States  v.  Lancaster,  5  People  v.  Barker,  114  Cal.  617,  46 

44  Fed.  Rep.  896, 922 ;  Com.  v.  Savory,  Pac.  Rep.  601 ;  People  t;.  Mayhew,  150 

10  Cush.  (Mass.)  535;  Rex  v.  Wilkes,  N.  Y.  346,  44  N.  E.  Rep.  971;  State  v. 

7  C.  &  P.  272;  Reg.  v.  Birkett,  8  C.  Turner,  119  N.  Car.  841,  25  S.  E.  Rep. 

&  P.  732;  Reg.  v.  Mullins,  3  Cox  C.  C.  810;  Blois  v.  State,  92  Ga.  584,  20  S. 

526,  531.     Defendant's  failing  to  call  E.  Rep.   12;    Schoenfeldt  v.  State,  30 

a  material  witness  was  held  sufficient  Tex.   App.   695,   18  S.  W.  Rep.  640; 


§  75  THE  ACCUSED  AS  A  WITNESS.  93 

mon  law  requiring  the  testimony  of  an  accomplice  to  be  cor- 
roborated has  been  confirmed  by  statutes  in  some  states.  In 
New  York  "a  conviction  can  not  be  had  upon  the  testimony  of 
an  accomplice,  unless  he  is  corroborated  by  such  other  evidence 
as  tends  to  connect  defendant  with  the  commission  of  the 
crime."1  Such  a  statute,  it  seems,  prohibits  a  conviction  on 
the  uncorroborated  evidence  of  an  accomplice,  even  though 
the  jury  believe  it  and  are  convinced  by  it  of  the  guilt  of  the 
accused  beyond  a  reasonable  doubt.2 

§  75.  The  nature  of  the  crime  as  a  test  of  corroboration — 
Sufficiency  of  corroboration. — The  character  and  degree  of  cor- 
roboration which  are  required  may,  to  a  certain  extent,  be  meas- 
ured by  the  enormity  of  the  crime,  the  moral  perversity 
involved  in  its  commission  and  the  punishment.  Hence  con- 
viction of  a  misdemeanor  might  be  sustained  without  the  intro- 
duction of  much  independent  and  corroborative  evidence 
where  such  evidence  would  be  required  in  the  case  of  a  felony.8 

It  would  be  illogical  to  place  accomplices  in  every  character 
of  crime  upon  the  same  footing.  Evidently  the  nature  of  the 
crime  in  which  the  accomplice  is  involved  must  vary  the 
weight  that  a  jury  will  accord  to  his  testimony ;  while  the  rea- 
sonableness of  his  story  and  his  manner  of  testifying,  are  con- 
siderations affecting  his  credibility  and  tending  to  shape  the 
advice  of  the  judge.  If  the  crime  be  free  from  moral  turpi- 
tude, the  story  which  he   tells  reasonable,  and  the  manner  of 

State     v.     Jackson,     106     Mo.     174;  x  People  v.  Ogle,  104  N.  Y.  511,  515; 

Crawford   v.    State   (Tex.,    1896),   34  People  v.  Elliott,  106  N.  Y.  288,  292; 

S.  W.  Rep.  927;    Marler  v.  State,  67  Peoples.  White,  62  Hun  114;  People 

Ala.  55;  Com.  v.  Bosworth,  22  Pick.  v.  Mayhew,  150 N.Y.  346,  25  S.  E.Rep. 

(Mass.)    397;     Com.    v.   O'Brien,    12  810. 

Allen  (Mass.)  183;  State  v.  Allen,  57  2  State  v.  Carr,  28  Ore.  389,  42  Pac. 

Iowa  431 ;  United  States  v.  Ybanez,  53  Rep.    215;    State  v.    Spencer  (Utah, 

Fed.  Rep.  536;  People  v.  Clough,  73  1897),  49  Pac.  Rep.  802. 

Cal.  348,  352 ;  State  v.   Banks,  40  La.  3  Bell  v.  State,  73  Ga.  572,  574 ;  Rex  v. 

An.   736;   State  v.  Miller,  97  N.  Car.  Jarvis,  2  Moo.  &  R.  40 ;  Reg.  v.Young, 

484,488;  Smith  v.  State  (Tex.,  1897),  10  Cox  C.  C.  371;   United  States  v. 

38  S.  W.  Rep.   200.     And  see  other  Kessler,  Bald.  15,22;    Underhill  on 

cases  fully  cited  in  Underhill  on  Evi-  Evidence,  p.  463,  note  4. 
dence,  p.  464. 


94 


CRIMINAL    EVIDENCE. 


§75 


its  relation  evincive  of  truthfulness,  the  jury  might,  even  under 
the  influence  of  the  strongest  caution,  feel  bound  to  believe  and 
convict.  To  deny  a  conviction  legal  support  under  such  circum- 
Btances  would  be  to  take  from  the  jury  their  right  of  judgment 
upon  the  weight  of  the  testimony,  and  to  compel  them  to  find 
against  their  conviction  of  truth.1  The  evidence  of  the  accom- 
plice may  be  corroborated  by  the  confession  of  the  accused  ;2 
but  not  by  the  accomplice  testifying  that  the  accused  had  stated 
to  him  that  he  intended  to  commit  other  distinct  crimes.3 

Whether  the  evidence  of  the  accomplice  shall  go  to  the  jury 
is  a  question  for  the  judge,  and,  before  submitting  it  to  them, 
he  should  be  satisfied  that  there  is  some  corroboration.  If  cor- 
roborative circumstances  are  proved  from  which,  with  the  evi- 
dence of  the  accomplice,  reasonable  men  may  infer  the  exist- 
ence of  the  guilt  of  the  accused,  the  court  may  submit  the 
evidence  of  the  accomplice  to  the  jury.  But  whether  the  testi- 
mony of  the  accomplice  is  corroborated  so  that  the  prisoner's 
guilt  is  shown  beyond  a  reasonable  doubt  is  a  question  for  them 
to  determine.4  Corroboration  by  independent  evidence  is  not 
dispensed  with  where  several  accomplices  testify  against  the 
accused.  The  accomplices  are  not  deemed  to  corroborate  each 
other.5 


1  State  v.  Hyer,  39  N.  J.  L.  598,  602. 

2Partee  v.  State,  67  Ga.  570,  572; 
United  States  %.  Lancaster,  44  Fed. 
Eep.  896,  921 ;  Schoenfeldtv.  State,  30 
Tex.  App.  695, 18  S.  W.  Rep.  640. 

8Kinchelow  v.  State,  5  Humph. 
(Tenn.)  9,  12. 

4  Com.  v.  Holmes,   127  Mass.  424, 


437;  People  v.  Everhardt,  104  N.  Y 
591,  594. 

5  Whitlow  v.  State  (Tex.,  1893),  18 
S.  W.  Rep.  865 ;  United  States  v.  Hinz, 
35  Fed.  Rep.  272;  People  v.  O'Neil, 
109  N.  Y.  251 ;  State  v.  Williamson,  42 
Conn.  261.  A  failure  to  so  charge  is 
error.  McConnell  v.  State  (Tex., 
1893),  18  S.  W.  Rep.  645. 


CHAPTER  VII. 


CHARACTER    OF    THE    ACCUSED. 


§  76.   Character  defined — The  accused 
may  show  good  character. 

77.  Specific  traits  only   relevant — 

Character  of  associates. 

78.  Bad  character — When  admissi- 

ble. 

79.  Effect  and  operation  of  evidence 

of  good  character. 

80.  Good  character,  though  never 

conclusive,   may  acquit  if   it 
creates  a  reasonable  doubt. 


§81. 


82. 
83. 


84. 

85. 

86. 


Mode  of  proof — Irrelevancy  of 
personal  opinions  —  Deroga- 
tory rumors  in  rebuttal. 

Specific  evil  acts — Relevancy  of. 

Remoteness — Character  subse- 
quent to  the  date  of  the  crime. 

The  grade  and  moral  nature  of 
the  crime. 

Disposition  is  irrelevant. 

Number  of  witnesses  to  charac- 
ter. 


§  76.  Character  defined — The  accused  may  show  good  char- 
acter.— The  character  of  the  accused  means  his  reputation,  i.  e., 
the  general  consensus  of  opinion  regarding  him,  based  on  his 
deportment  and  conduct,  which  is  held  by  his  neighbors, 
friends  and  acquaintances.  The  accused  may  always  prove  his 
good  character.1  If,  however,  he  offers  no  evidence  on  this 
point,  the  law  presumes  he  has  a  fair  and  respectable,  if  not, 
indeed,  an  excellent  character,  and  does  not  permit  any  pre- 
sumption of  guilt  to  arise  from  his  silence,  or  from  his  failure 
to  offer  evidence  on  this  point.  That  his  character  is  bad  can 
never  be  presumed,  nor  should  the  prosecution  be  permitted 
to  comment  unfavorably  upon  his  omission.2 


1Hall  v.  State,  132  Ind.  317,  323; 
State  v.  Donahoo,  22  W.  Va.  761,  764; 
State  v.  Schleagel,  50  Kan.  325,328; 
People  v.  Ashe,  44  Cal.  288,  291 ;  Grif- 
fin v.  State,  14  Ohio  St.  55,  63 ;  State 
v.  Kinley,  43  Iowa  294,  296. 

2  State  v.  Dockstader,  42  Iowa  436 ; 
Ackley  r.  People  (burglary),  9  Barb. 
609,  611;  McQueen  v.  State,  82   Ind. 


72,  73;  Ormsby  v.  People,  53  N.  Y. 
472,  475 ;  Donoghoe  v.  People,  6  Park. 
Cr.  Rep.  120,  124;  State  v.  Upham 
(counterfeiting),  38 Me.  261, 263 ;  State 
v.  O'Neal,  7  Ired.  251,  252;  People*. 
Bodine,  1  Denio  (N.  Y.)  281.  Contra, 
State  v.  McAllister,  24  Me.  139;  State 
Kabrich,  39  Iowa  277.  Counsel  for 
the  accused  may  comment  on  the  pre- 


(95) 


96 


CRIMINAL    EVIDENCE. 


§77 


The  accused  starts  out  with  the  presumption  of  innocence. 
His  good  character,  if  proved,  will  strengthen  this.  Its  rele- 
vancy depends  solely  upon  the  inference  that  any  reasonable 
man  would  draw  that  the  accused  is  not  guilty,  because  expe- 
rience teaches  that  it  is  extremely  improbable  that  a  man  of 
good  character  would  commit  the  crime  with  which  he  is 
charged.1 


§  77.    Specific  traits  only  relevant — Character  of  associates. 

— It  is  obvious  that  the  traits  of  character  which  may  be 
proved  must  depend  upon  the  nature  of  the  crime  alleged  and 
the  moral  wrong  which  is  involved  in  its  commission.2 


sumption  of  good  character,  but  may 
not  discuss  the  good  character  of  the 
accused  unless  some  evidence  of  it  has 
been  offered.  Cluck  v.  State,  40  Ind. 
263,  270,  271.  The  fact  that  the 
accused  does  not  testify  as  a  witness 
does  not  prevent  him  from  proving  his 
good  character.  State  v.  Hice,  117  N. 
Car.  782,  23  S.  E.  Rep.  357. 

1 "  The  object  of  laying  evidence  of 
character  before  the  jury  is  to  induce 
them  to  believe,  from  the  improba- 
bility that  a  person  of  good  character 
would  commit  crime,  that  there  is  a 
mistake  or  misrepresentation  on  the 
part  of  the  prosecution."  Rex  v. 
Stannard,  7  C.  &  P.  673.  "This  pre- 
sumption against  the  commission  of 
crime  arises  from  the  general  improb- 
ability proved  by  common  observation 
and  experience,  that  a  person  who  has 
uniformly  pursued  an  honest  and  up- 
right course  of  conduct  will  depart 
from  it.  *  *  *  Such  a  person  may 
be  overcome  by  temptation  and  fall 
into  crime,  and  cases  of  that  kind 
often  occur,  but  they  are  exceptions ; 
the  general  rule  is  otherwise.  *  *  * 
The  influence  of  the  presumption  may 
be  slight  when  the  accusation  of  crime 
is  supported  by  the  direct  and  positive 
testimony  of  credible   witnesses.     It 


will  seldom  avail  to  control  the  mind 
where  the  testimony,  though  circum- 
stantial, is  reliable,  strong  and  clear. 
If  the  evidence  is  nearly  balanced,  but 
slightly  preponderant  against  the  de- 
fendant, the  presumption  from  proof 
of  good  character  is  entitled  to  great 
weight  and  will  often  be  sufficient  to 
turn  the  scale  and  produce  an  ac- 
quittal." Cancemi  v.  People,  16  N.  Y. 
501,506. 

2  State  v.  Emery,  59  Vt.  84,  90 ;  Peo- 
ple v.  Garbutt,  17  Mich.  9;  Kahlen- 
beck  v.  State,  119  Ind.  118,  121;  Gor- 
don v.  State,  3  Clarke  (Iowa)  410,  415 ; 
Basye  v.  State,  45  Neb.  261,  63  N.  W. 
Rep.  811;  People  v.  Josephs  (rape),  7 
Cal.  129,  130 ;  People  v.  Fair  (homi- 
cide), 43  Cal.  137,  148-151;  Gandolfo 
v.  State  (homicide),  11  Ohio  St.  114, 
117 ;  Coffee  v.  State,  1  Tex.  App.  548, 
550;  Keev.  State,  28  Ark.  155,  164; 
Griffin  v.  State,  14  Ohio  St.  55,  63; 
States.  King,  78 Mo. 555, 556;  1  Tayl., 
§  326 ;  1  Greenl.,  §  54.  Some  authori- 
ties hold  that  evidence  of  good  char- 
acter need  not  be  confined  to  the  trait 
involved,  particularly  in  capital  cases. 
Hoppsu.  People,  31  111.385,  388;  Com. 
v.  Hardy,  2  Mass.  303,  317;  People  v. 
Vane,  12  Wend.  (N.  Y.)  78;  Com.  v. 
Webster,  5  Cush.  (Mass.)  295,  325. 


§  78  CHARACTER    OF    THE    ACCUSED.  97 

Thus  evidence  that  the  accused  was  generally  reputed  to  be  a 
quiet,  peaceable  and  inoffensive  man  is  always  relevant  in  cases 
of  homicide,  and  particularly  so  under  a  plea  of  self-defense. 
And,  illogical  as  it  may  seem,  such  evidence  has  been  admit- 
ted in  a  case  of  homicide  by  poisoning  upon  the  theory  that 
such  traits  of  character,  being  inconsistent  with  a  disposition 
to  take  life  by  one  method,  would  be  equally  inconsistent  with 
homicide  by  another.1  Evidence  of  general  good  character 
has  been  rejected  in  a  prosecution  for  rape,  though  upon  this 
point  the  cases  are  not  wholly  in  harmony.2  So,  too,  in  a 
prosecution  for  larceny,  evidence  of  character  must  bear  directly 
on  honesty  and  financial  integrity.3  Though  the  accused  may 
prove  his  own  character,  he  will  not  be  permitted  to  prove  that 
others  conspiring  with  him  and  jointly  indicted,4  or  who  are 
suspected  of  complicity  in  the  crime,5  are  men  of  good  charac- 
ter. This  evidence  is  not  in  the  least  relevant  to  show  his 
innocence,  as  the  fact  that  the  friends  or  acquaintances  of  the 
accused  are  men  of  unimpeachable  character,  in  no  way  proves 
that  he  is  himself. 

On  the  other  hand,  it  seems  that  the  admission  of  evidence 
showing  the  bad  character  of  a  co-defendant,  separately  tried, 
is  not  error.6 

§  78.  Bad  character — When  admissible. — Except  so  far  as 
the  character  of  the  accused  for  veracity  may  be  attacked  when 

1Hall  v.  State,  132   Ind.   317,  324.  5  State  v.  Staton,  114  N.  Car.  813,  818, 

But  evidence  that  the  character  of  the  19  S.  E.  Rep.  96. 

accused  for  honesty  was  bad  is  not  6Aneals  v.  People,  134  111.  401,  415, 

relevant  in  homicide    to    prove  the  25  N.  E.  Rep.  1022,  1026.  The  defend- 

killing  or  to  show  malice.     People  v.  ant  can  not  be  questioned  as  to  the 

Cowgill,  93  Cal.  596,  597.  bad  character  of  his  relatives,  who  are 


2  People  v.  Josephs,  7  Cal.  129,  130 
Contra,  State  v.  Lee,  22  Minn.  407-409 

8  State  v.  Bloom,  68  Ind.  54-57 ;  But 
ler  v.  State,  91  Ala.  87,  9  So.  Rep.  191 
Hays  v.  State,  110  Ala.  23,  20  So.  R 
322. 

4  Walls  v.  State,  125  Ind.  400,  403; 
Omer  v.  Com.  (homicide),  95  Ky.  353,     7,  25  S.  W.  Rep.  95,  96,  98 
362,  25  S.  W.  Rep.  594,  596. 
7— Cr.  Ev. 


in  no  way  connected  with  the  crime. 
Vale  v.  People,  161  111.  309,  43  N.  E. 
Rep.  1091.  The  failure  of  the  court  to 
charge  on  the  evidence  of  good  char- 
acter offered  by  the  accused  is  not,  in 
the  absence  of  a  request  by  him, 
erroneous.     State  v.  Murphy,  118  Mo. 


98  CRIMINAL    EVIDENCE.  §  78 

he  is  a  witness,  the  state  can  not  show  his  bad  character  in  the 
first  instance,  i.  e.,  before  he  offers  to  prove  good  character.1 
Whenever  the  accused  shall  introduce  evidence  of  good  charac- 
ter, rebutting  evidence  to  show  his  bad  character,  but  only  as 
regards  the  trait  involved  in  the  crime  charged  against  him,2 
is  always  admissible.3  And  this  is  the  rule  even  though  the 
evidence  of  good  character  was  elicited  uoon  the  cross-examina- 
tion of  the  witnesses  for  the  state.4 

To  admit  evidence  of  bad  character  against  the  accused,  it  is 
necessary  that  he  shall  have  already  put  his  character  clearly 
and  expressly  in  issue.5  The  fact  that  it  is  incidentally  and 
indirectly  referred  to,  as  when  a  continuance  is  asked  for  be- 
cause witnesses  to  good  character  are  absent,  does  not  let  in 
evidence  of  bad  character.6  But  the  rule  protecting  the  char- 
acter of  the  accused  from  attack  in  the  first  instance  is  subject 
to  a  seeming  exception  if  he  goes  upon  the  stand  as  a  witness. 
If  it  is  expressly  provided,  by  statute  or  otherwise,  that  he 
may  be  examined  or  impeached  as  any  other  witness,  the  state 
may  prove  his  bad  character  for  veracity  for  the  purpose  of 

1  Felsenthal  v.  State,  30  Tex.  App.  state  may  show  his  bad  character  in 

675,  677,  18  S.  W.  Rep.  644,  645 ;  Peo-  another.     State  v.  Foster,  91  Iowa  164, 

pie  v.  McKane,   143  N.  Y.  455,  473;  59  N.  W.  Rep.  8.     Cf.  State  v.  Espin- 

McDonald  v.  Com.,  86  Ky.   10,   13;  ozei,  20  Nev.  209,  19  Pac.  Rep.  677. 

Com.   v.   Hardy,   2    Mass.   303,   318;  2  Johnson  v.  State,  17  Tex.  App.  565, 

Montgomery  v.  Com.  (Ky.),  30  S.  W.  572. 

Rep.  602;  State  v.  Thurtell  (larceny),  3See  cases  in  last  note. 

29  Kan.  148 ;  Carter  v.  State,  36  Neb.  4  Reg.   v.   Gadbury,    8  C.  &  P.  676. 

481;  State  v.  Kabrich,  39  Iowa  277,  Evidence  of  bad  character  is  governed 

278;    Pauli  v.  Com.,  89  Pa.    St.  432,  by  the   same   rules   whether  elicited 

435;  State  v.  Ellwood,  17   R.  1.763,  from  independent  witnesses  or  on  the 

766,  24  Atl.  Rep.  782;  State  v.  Lapage,  cross-examination.     Keener  v.  State, 

57  N.  H.  245;  State  v.  Creson,  38  Mo.  18  Ga.  194,  221 ;  Com.  v.  O'Brien,  119 

372;  State  v.  O'Neal,  7  Ired.  (N.  Car.)  Mass.  342,  345.    The  state  may  show 

251,  253;  Griffin  v.  State,  14  Ohio  St.  the  actual  reputation  of  the  defendant, 

55,  63 ;  Carter  v.  Com.,  2  Va.  Cas.  169 ;  though  doing  so  may  entail  an  inquiry 

Cluck  v.  State,  40  Ind.  263,  270,  271 ;  into  his  political  or  religious  belief. 

State  v.   Upham,    38    Me.   261,   263.  People  v.  McKane,  143  N.  Y.  455,  473. 

Where  the  defendant  introduces  evi-  5  People  v.  Fair,  43  Cal.  137. 

dence  to  show  good  character  in  one  6  Felsenthal  v.  State,  30  Tex.  App. 

community  where  he  has  lived  the  675,  677,  18  S.W.  Rep.  644. 


§79 


CHARACTER    OF    THE    ACCUSED. 


99 


impeaching  him  as  a  witness  (but  for  no  other  purpose), 
before  he  offers  any  evidence  of  good  character.1 

§  79.    Effect  and  operation  of  evidence  of  good  character. — 

Good  character  should  be  permitted  to  operate  as  a  positive, 
appropriate  and  substantial  defense.  No  distinction  should  be 
made,  in  application  and  effect,  between  evidence  to  prove  facts 
and  evidence  to  prove  character.2  Both  rest  on  the  same  basis. 
A  man's  good  character  is  a  fact  making  strongly  for  the 
inference  that  he  is  innocent,  and  not  a  mere  make-weight  to 
be  thrown  in  if  his  guilt  is  trembling  in  the  balance. 

Though  good  character  is  of  especial  importance  when  the 
incriminating  evidence  is  wholly  circumstantial,3  it  is  not  to 
be  rejected,  or  even  disregarded,  when  the  evidence  against  the 
accused  is  direct.4  And,  except  in  a  few  early  cases,5  its  ad- 
missibility has  never  been  limited  to  doubtful  cases,  or  to 
those  in  which  the  other  evidence  was  contradictory  or  un- 
convincing.6 


1  McDonald  v.  Com.,  86  Ky.  10,  13, 
14,  4  S.W.  Rep.  687.  Where  the  state 
neglects  to  rebut  the  defendant's  evi- 
dence of  good  character,  it  is  error  for 
the  court  to  charge  "  that  the  law  does 
not  permit  the  state  to  attack  his 
character  while  allowing  him  to  prove 
good  character."  The  beneficial  effect 
of  the  defendant's  evidence  may  be 
nullified  by  the  inference  which  may 
be  drawn  that  the  prosecution  is  al- 
ways precluded  from  attacking  good 
character.  People  v.  Marks,  90  Mich. 
555,  51  N.  W.  Rep.  638;  ante,  §66. 

"State  v.  Murphy,  118  Mo.  7,  25 
S.  W.  Rep.  95,  97 ;  State  v.  McNally, 
87  Mo.  644,  658,  659;  Lee  v.  State,  2 
Tex.  App.  338, 341 ;  Rex  v.  Stannard,  7 
C.  &  P.  673. 

3  Jackson  v.  State,  81  Wis.  127,  138, 
51  N.  W.  Rep.  89. 

4  State  v.  Rodman,  62  Iowa  456; 
Stover  v.  People,  56  N.  Y.  315,  319. 

5  Rex  v.  Turner,  6  How.  St.  Tr.  565, 


613;  Com.  v.  Webster,  5  Cush.  (Mass.) 
325;  United  States  v.  Roudenbush,  1 
Bald.  C.  C.  514.  See  State  v.  Edwards, 
13  S.  Car.  30,  33. 

6 "  It  has  been  usual  to  treat  the 
good  character  of  the  accused  as  evi- 
dence to  be  taken  into  consideration 
only  in  doubtful  cases.  Juries  have 
generally  been  told  that  where  the 
facts  proved  are  such  as  to  satisfy  their 
minds  of  the  guilt  of  the  party,  char- 
acter, however  excellent,  is  no  subject 
for  their  consideration,  but  when  they 
entertain  any  doubt  as  to  the  guilt  of 
the  party,  they  may  properly  turn 
their  attention  to  his  good  character. 
It  is,  however,  submitted  with  defer- 
ence, that  the  good  character  of  the 
party  accused,  when  satisfactorily  es- 
tablished, is  an  ingredient  which 
ought  always  to  be  submitted  to  the 
jury,  together  with  the  other  facts  and 
circumstances  of  the  case.  The  nature 
of  the  charge  and   the  evidence  by 


1()0 


CRIMINAL    EVIDENCE. 


§80 


The  correct  rule  is  that  in  all  cases  a  good  character,  if 
proved,  must  be  considered.1 

§  80.  Good  character,  though  never  conclusive,  may  acquit 
if  it  creates  a  reasonable  doubt. — Though  evidence  of  good 
character  should  always  receive  due  consideration,  the  fact  that 
the  defendant  has  established  a  high  character  for  peace  or 
honesty  furnishes  no  reason  why  the  jury  must  believe  his  evi- 
dence, if  it  is  weak  or  contradictory.2 

An  instruction  in  a  prosecution  for  robbery  that  if  the  jury 
are  satisfied  beyond  a  reasonable  doubt  of  the  prisoner's  guilt, 
after  a  consideration  of  all  the  evidence,  including  that  show- 
ing his  character  for  honesty,  then,  though  they  might  believe 
he  had  a  good  character  before  the  crime,  it  will  not  entitle 
him  to  an  acquittal,  and  they  may  disregard  it,  is  correct.3 
But  while  proof   of   unblemished   character  alone  may  not  be 


which  it  is  supported  will  often  render 
such  ingredient  of  little  or  no  value, 
but  the  more  correct  course  seems  to 
be,  not,  in  any  case,  to  withdraw  it 
from  consideration,  but  to  leave  the 
jury  to  form  their  own  conclusion 
upon  the  evidence  whether  an  indi- 
vidual, whose  character  was  previously 
unblemished,  has,  or  has  not,  com- 
mitted the  particular  crime  for  which 
he  is  called  upon  to  answer."  2Russ. 
C.  &  M.  785. 

People  v.  Van  Dam  (Mich.,  1896), 
65  N.  W.  Rep.  277 ;  Murphy  v.  State, 
108  Ala.  10,  18  So.  Rep.  557;  Edging- 
ton  v.  United  States,  164  IT.  S.  361, 17  S. 
Ct.  72;  McSwean  v.  State  (Ala.,  1897), 
21  So.  Rep.  211 ;  Wesley  v.  State,  37 
Miss.  327 ;  People  v.  Ashe,  44  Cal.  288, 
293;  United  States  v.  Whitaker,  6 
McLean  342,  344;-  Cole  v.  State,  4 
So.  Rep.  577 ;  State  v.  Holmes  (Minn., 
1896),  68  N.  W.  Rep.  11;  Harrington 
v.  State,  19  Ohio  St.  264,  269;  Stew- 
art r.  State,  22  Ohio  St.  477,  485; 
State  v.  Henry,  5  Jones  (N.  Car.)  65, 


66;  State  v.  Ormiston,  66  Iowa  143; 
State  v.  Gustafson,  50  Iowa  194,  197 ; 
Fields  v.  State,  47  Ala.  603,  609;  Car- 
son v.  State,  50  Ala.  134, 138 ;  Cancemi 
v.  People,  16  N.Y.  501,  505-507;  Stover 
v.  People,  56  N.  Y.  315,  317;  State  v. 
Leppere,  66  Wis.  355;  State  v.  Jones, 
52  Iowa  150;  State  v.  Ford,  3  Strobh. 
(S.  Car.)  517;  Heine  v.  Com.,  91  Pa. 
St.  145,  148;  Hollands.  State,  131  Ind. 
568, 571 ;  Lee  v.  State,  2  Tex.  App.  338, 
341 ;  Kistler  v.  State,  54  Ind.  400,  405 ; 
Davis  v.  State,  10  Ga.  101,  105;  Jupitz 
v.  People,  34  111.  516,  521 ;  Remsen  v. 
People,  43  N.  Y.  6,  57  Barb.  324;  Peo- 
ple v.  Mead,  50  Mich.  228;  Com.  v. 
Leonard,  140  Mass.  473;  Hanney  v. 
Com.,  116  Pa.  St.  322,  9  Atl.  Rep.  339. 

2  State  v.  Brown,  34  S.  Car.  41,  48, 
12  S.  E.  Rep.  662. 

3  McQueen  v.  State,  82  Ind.  72,  74 ; 
Wagner  v.  State,  107  Ind.  71,  74;  Cav- 
endar  v.  State,  126  Ind.  47,  49 ;  Hol- 
land v.  State,  131  Ind.  562;  State  v. 
Smith,  9  Houst.  588,  33  Atl.  Rep.  441. 


§81 


CHARACTER    OF    T1IK    ACCUSED. 


101 


sufficient  as  against  proof  of  guilt  beyond  a  reasonable  doubt,1 
evidence  of  good  character  should  go  to  the  jury  without  lan- 
guage of  disparagement  by  the  court,  to  be  considered  with  all 
the  evidence  and  not  independently  of  it.2 

Unless  the  evidence  of  guilt  is  so  convincing  that  it  pre- 
cludes a  reasonable  doubt,  an  acquittal  will  be  justified  if  the 
evidence  of  good  character,  considered  in  connection  with  all 
the  other  evidence,  raises  a  reasonable  doubt.3 

§  81.  Mode  of  proof — Irrelevancy  of  personal  opinions — De- 
rogatory rumors  in  rebuttal. — Character,  i.  e.,  the  general  rep- 


1  Harrington  v.  State,  19  Ohio  St.  264 
People  v.  Sweeney,  133  N.  Y.  609,  610 
Hathcock  v.  State,  88  Ga.  91 ;  Epps  v 
State,  19  Ga.  102,  120;    Springfield  v 
State,  96  Ala.  81,  11  So.  Rep.  250,  252 
Webb  v.  State,  106  Ala.  52, 18  So.  Rep 
491.     Thus  good   character  for  hon- 
esty is   not  enough,    alone,   to  rebut 
the  presumption  which  arises    from 
the  unexplained  possession  of  stolen 
property.     Wagner  v.  State,  107  Ind. 
71,  73. 

2  Springfield  v.  State,  96  Ala.  81,  11 
So.  Rep.  250,  252;  Heine  v.  Com.,  91 
Pa.  St.  145,  148;  People  v.  Raina,  45 
Cal.  292,  293;  People  v.  Ashe,  44  Cal. 
288,292,293;  Holland  v.  State,  131 
Ind.  568,  31  N.  E.  Rep.  359;  State  v. 
Alexander,  66  Mo.  148;  Stover  v.  Peo- 
ple, 56  N.  Y.  315,  319;  State  v.  Lep- 
pere,  66  Wis.  355,  360;  Aneals  v.  Peo- 
ple, 134  111.  401,  415;  Kistler  v.  State, 
54  Ind.  400,  405.  See  remarks  of  the 
court  in  Com.  v.  Leonard,  140  Mass. 
473,  479.  Its  weight  and  effect  are  for 
the  jury  alone.  Hence  it  is  improper 
to  charge  that,  in  a  doubtful  case,  evi- 
dence of  character  should  have  great 
weight  with  them.  State  v.  Brown, 
34  S.  Car.  41,  48,  and  White  v.  United 
States,  17  S.  Ct.  38. 

3  Stephens  v.  People,  4  Park.  Cr. 
Cases  (N.  Y.)  396;  Newsom  ».  State, 
107  Ala.  133,  18  So.  Rep.  206;  State  v. 


Leppere,  66  Wis.  355  361,  362;  Swee- 
ney v.  People,  133  NY.  609,  611 ;  Peo- 
ple v.  Bell,  49  Cal.  485;  Redd  v.  State 
(Ga.,  1897),  25  S.  E.  Rep.  268;  Mc- 
Swean  v.  State  (Ala.,  1897),  21  So. 
Rep.  211;  Crawford  v.  State  (Ala., 
1897),  21  So.  Rep.  214;  Hammond  v. 
State  (Miss.,  1897),  21  So.  Rep.  149; 
McQueen  v.  State,  82  Ind.  72,  74 ;  Hall 
v.  State,  40  Ala.  698,  707;  State  v. 
Swain,  68  Mo.  615;  Carson  v.  State, 
50  Ala.  134,  138;  Long  v.  State,  23 
Neb.  33.  "There  is  no  case  in  which 
the  jury  may  not,  in  the  exercise  of  a 
sound  discretion,  give  a  prisoner  the 
benefit  of  a  previous  good  character. 
No  matter  how  conclusive  the  other 
testimony  may  appear,  the  character 
of  the  accused  may  be  such  as  to  cre- 
ate a  doubt  in  the  minds  of  the  jurors, 
and  may  lead  them  to  believe,  in  view 
of  the  improbabilities  that  a  person 
of  such  character  would  be  guilty  of 
the  offense  charged,  that  the  other 
evidence  in  the  case  is  false  or  the 
witnesses  mistaken.  An  individual 
accused  of  crime  is  entitled  to  have  it 
left  to  the  jury  to  form  their  conclu- 
sions upon  all  the  evidence,  whether 
he,  if  his  character  was  previously  un- 
blemished, has  or  has  not  committed 
the  particular  crime  alleged  against 
him."  Remsen  v.  People,  43  N.  Y.  6, 
8,  9. 


102  CRIMINAL  EVIDENCE.  §  81 

utation  which  the  accused  possesses  and  enjoys  among  his 
acquaintances,  may  be  shown  by  the  testimony  of  such  persons 
only.  The  witness  is  not  competent  unless  it  is  first  shown 
that  he  knows  such  reputation,1  which  must  be  that  which  is 
current  in  the  neighborhood  where  both  he  and  the  accused 
reside." 

The  witness  can  not  give  an  opinion  which  is  merely  the 
result  of  observing  the  disposition  and  conduct  of  the  defend- 
ant. What  is  required  of  him  is  his  knowledge  of  the  exist- 
ing general  reputation  which  he  has  obtained  by  hearing  the 
comments  of  others  on  the  accused  while  he  lived  among  those 
who  knew  him.8 

Evidence  of  the  good  actions  of  the  accused  is  inadmissible 
to  prove  his  good  reputation.4  Vague  rumors  are  not  reputa- 
tion, and  a  witness  is  not  competent  to  prove  reputation  whose 
sole  basis  of  knowledge  is  rumor,  idle  reports  and  fugitive 
gossip  not  traceable  to  any  known  and  responsible  source.5 

Affirmative  testimony  of  express  oral  comments  upon  the 
reputation  of  the  accused  is  not  always  required.  Evidence 
that  the  character  of  the  accused  had  never  been  denied  or 
doubted,  or  even  discussed  or  spoken  of  among  his  acquaint- 
ances, though  negative  in  form,  is  always  admissible  and  often 
of  the  highest  value.6 

1  State  v.  Coley,  114  N.  Car.  879,  883.     Ala.  76,  9  So.  Rep.  87,  88;   Kistler  v. 

2  People  v.  Rodrigo,  69  Cal.  601,  603.     State,  54  Ind.  400, 405 ;  State  v.  Kinley, 
3Reg.u.  Rowton,  10 Cox  C.  C.  25,30;     43  Iowa  294,  296 ;    Com.  v.  Hardy,  2 

Com.  v.  Rogers,   136  Mass.  158,  159;  Mass.  303,  317;    Com.  v.  O'Brien,  119 

State  v.  Grinden,  91  Iowa  505,  60  N.  Mass.  342,  345 ;   Keener  v.  People,  18 

W.  Rep.  37;    Sawyer  v.   People,   91  Ga.  194,  221. 

N.  Y.  667;    Hirschman  v.  People,  101  5  Haley    v.   State,    63    Ala.   83,   86. 

111.  568,  574 ;    Berneker  v.  State  (lar-  Hence  the  results  of  a  stranger's  in- 

ceny),  40  Neb.  810,  814,  816,  59  N.  W.  quiries    in   the   neighborhood  where 

Rep.  372 ;  State  v.  Ward,  73  Iowa  532,  the  accused  resides  is  not  admissible. 

35  N.  W.  Rep.  617.    The  witness  need  Dave  v.  State,  22  Ala.  23,  39. 

not  be  personally  acquainted  with  the  6  State  v.  Brandenburg,  118  Mo.  181, 

accused  if  he  knows  his  reputation.  185,   23   S.    W.    Rep.    1080;    State   v. 

State  v.  Turner,  36  S.  Car.  534,  539.  Grate,  68  Mo.  22,  27;   Cole  v.  State, 

4  Carthaus  v.  State,  78  Wis.  560,  47  59  Ark.  50 ;  Lemons  v.  State,  4  W.  Va. 

N.  W.  Rep.  629;    Thomas  v.  People,  755,  761.     "A  very  sensible  and  com- 

67  N.  Y.  218,  223;    Hopps  v.  People,  mendable  relaxation  of  the  old  and 

31  111.  385,  388;    Walker  v.  State,  91  strict  rule  is  the  reception  of  negative 


§82 


CHARACTER    OF    THE    ACCUSED. 


103 


§  82.  Specific  evil  acts — Relevancy  of. — Evidence  of  specific 
acts  of  bad  conduct  is  not  admissible  to  show  bad  character. 
The  accused  may  always  be  prepared  to  meet  an  attack  on  his 
general  character,  but  can  not  fairly  be  required,  without 
notice,  to  controvert  particular  facts.1  But  a  witness  to  good 
character  may  be  asked  on  cross-examination  whether  he  has 
heard  rumors  of  particular  and  specific  charges  of  thecommis. 
sion  of  acts  inconsistent  with  the  character  which  he  was  called 
to  prove,8  and  generally  as  to  the  grounds  of  his  evidence,  not  so 
much  to  establish  the  truth  of  such  facts  or  charges,  as  to  test 
his  credibility,  and  to  determine  the  weight  of  his  evidence.8 
He  may  be  asked  if  he  has  not  heard  some  general  report 
which  contradicts  the  good  reputation  which  he  has  been  called 
upon  to  prove.4  If  he  admits  having  heard  derogatory  reports 
of  the  accused,  the  latter  may  show  their  nature  and  subject- 


evidence  of  good  character  as  the  tes- 
timony of  a  witness  that  he  has  been 
acquainted  with  the  defendant  for  a 
considerable  time,  under  such  circum- 
stances that  he  would  be  more  or  less 
likely  to  hear  what  was  said  about 
him,  and  that  he  has  never  heard  any 
remark  about  his  character — the  fact 
that  a  person's  character  is  not  talked 
about  at  all  being,  on  grounds  of  com- 
mon experience,  excellent  evidence 
that  he  gives  no  occasion  for  censure." 
State  v.  Lee,  22  Minn.  407,  409. 

1  ITnderhill  on  Evidence,  p.  26,  506; 
Nelson  v.  State,  32  Fla.  244;  13  So. 
Rep.  361,  362;  Steele  v.  State,  83 
Ala.  20,  3  So.  Rep.  547;  McCarty  v. 
People,  51  111.  231,  232;  State  v.  Done- 
Ion,  45  La.  An.  744,  754,  12  So.  Rep. 
922;  Hirschman  v.  State,  101  111.  568, 
574;  Com.  v.  O'Brien,  119  Mass.  342, 
345 ;  Gordon  v.  State,  3  Clarke  (Iowa) 
410, 415 ;  Taylor  v.  Com.,  3'Bush  (Ky. ) 
508,  511 ;  Reg.  v.  Rowton,  10  Cox  C. 
C.  25;  Drew  r.  State,  124  Ind.  9,  17; 
Bennett  v.  State,  8  Humph.  118;  State 
v.  Laxton,  76  N.  Car.  216;  Keener  v. 


State,  18  Ga.  194,  221 ;  Com.  v.  Web- 
ster, 5  Cush.  295,  324;  People  v. 
White,  14  Wend.  Ill,  114;  Snyder  v. 
Com.,  85  Pa.  St.  519,  522;  Brownell  v. 
People,  38  Mich.  732,  736.  A  deputy 
sheriff  can  not  be  permitted  to  testify 
that  he  nearly  always  had  a  warrant 
for  the  defendant's  arrest.  Murphy 
v.  State,  108  Ala.  10,  18  So.  Rep.  557. 
2 Whiter.  State  (Ala.  1897),  21  So. 
Rep.  330;  State  v.  McDonald,  57  Kan. 
537,  46  Pac.  Rep.  966;  Goodwin  v. 
State  (homicide),  102  Ala.  87,  15  So. 
Rep.  571 ;  Siberry  v.  State,  133  Ind.  677, 
684 ;  Reg.  v.  Wood,  5  Jur.  295 ;  Ingram 
v.  State,  67  Ala.  67;  State  v.  Pain,  48 
La.  An.  311,  19  So.  Rep.  138;  State  v. 
Merriman,  34  S.  Car.  16,  35 ;  Ozburn  v. 
State,  87  Ga.  173,  13  S.  E.  Rep.  247, 
249;  State  v.  Arnold,  12  Iowa  479, 487; 
State  v.  Dill,  26  S.  E.  Rep.  567. 

3  Com.  v.  O'Brien,  119  Mass.  342, 
356 ;  State  v.  McGee,  81  Iowa  17 ;  46 
N.  W.  Rep.  764,  765. 

4  State  v.  West,  43  La.  An.  1006; 
Thompson  v.  State  (larceny),  100  Ala. 
70,  14  So.  Rep.  878. 


104  CRIMINAL    EVIDENCE.  §  83 

matter  to  prove  that  they  did  not  relate  to  and  do  not  affect  the 
particular  trait  of  character  in  issue.1 

§  83.  Remoteness — Character  subsequent  to  the  date  of  the 
crime. — Evidence  of  character,  either  good  or  bad,  is  irrele- 
vant if  too  remote  in  time  or  place.2  Though  a  man's  charac- 
ter may  have  been  bad  at  one  period  of  his  life,  he  may 
subsequently  have  reformed  and  become  a  law-abiding  person 
at  the  date  of  the  crime.  Nor  does  it  follow  because  the  ac- 
cused enjoyed  a  reputation  for  peacefulness  and  honesty  when 
a  boy  that  he  retained  it  after  maturity  or  down  to  the 
date  of  the  crime.3  Again,  evidence  of  bad  character  must 
refer  to  a  period  prior  to  the  discovery  of  the  crime.4  It 
is  only  just  that  this  evidence  should  be  free  from  any  imputa- 
tion or  suggestion  of  wrong-doing  which  may  have  arisen  from 
a  public  discussion  of  the  crime  or  of  the  arrest  of  the  accused. 
To  permit  the  inquiry  to  extend  down  to  the  arrest  or  trial 
would  be  to  embarrass,  if  not  to  destroy,  the  probability  of 
innocence  arising  from  good  character  by  evidence  of  a  single 
wicked  transaction  with  which  the  accused  may  not  have  been 
connected  at  all.  This  is  not  only  contrary  to  all  recognized 
rules  of  evidence,  but  extremely  unfair  to  the  accused.5 

§  84.  The  grade  and  moral  nature  of  the  crime. — The  admis- 
sibility and  force  of  evidence  of  character  does  not  depend 
upon  the  degree  of  immorality  involved  in  the  crime,6  but 
rather  upon  the  cogency  and  force  of  the  evidence  tending  to 
prove  its  commission  and  upon  the  motives  which  prompted  it. 
In  the  case   of  a  great  crime,  which  apparently  was  planned 

1  Stape  v.  People,  85  N.  Y.  390,  393.  Lea  v.  State,   94  Tenn.  495,   496,   29 

2  State  v.  Taylor,  45  La.  An.  605,  S.W.  Rep.  900;  Brown  v.  State,  46  Ala. 
608,  12  So.  Rep.  927.  Remote  evi-  175,  1S4;  Griffith  v.  State,  90  Ala.  538, 
dence  of  good  character  is  not  objec-  539;  Peoples.  McSweeny  (Cal.,  1894), 
tionable  where  the  only  evidence  38  Pac.  Rep.  743;  but  compare  Com. 
against  the  defendant  is  circumstan-  v.  Sacket,  22  Pick.  (Mass.)  394,399. 
tial.     Fry  v.  State,  96  Tenn.  467,  35  S.        5  White  v.  Com.,  80  Ky.  480. 

W.  Rep.  883.  « Cancemi  v.  People,  16  N.  Y.  501, 

3  State  v.  Barr,  11  Wash.  481,  39  Pac.  506,  507 ;  Harrington  v.  State,  19  Ohio 
Rep.  1080.  St.  264,  268. 

4  White  v.  Com.,  80   Ky.  480,485; 


§  85     '  CHARACTER    OF    THE    ACCUSED.  105 

and  executed  with  great  deliberation,  no  reason  exists  why 
character  should  not  be  considered,  as  it  is  extremely  probable 
that  a  person  of  blameless  and  pure  habits  would  not  engage 
therein.  Of  course,  unusual  and  atrocious  crimes  involving 
great  moral  turpitude  are  so  obviously  beyond  the  ordinary 
bounds  of  human  conduct  that  it  seems  clear  the  perpetrator 
must  have  been  prompted  by  extraordinary  motives,  far  differ- 
ent from  those  guiding  his  every-day  actions,  upon  which  esti- 
mated of  his  character  are  based.  Hence,  perhaps,  evidence  does 
not  possess  the  same  cogency  in  connection  with  a  crime  of  ex- 
traordinary malignity  apparently  committed  with  little,  if  any, 
forethought,  and  under  the  influence'  of  some  sudden  and 
powerful  emotion,  as  it  would  in  the  case  of  an  inferior 
offense.1 

§  85.  Disposition  is  irrelevant. — It  is  important  to  distin- 
guish between  evidence  of  reputation  to  show  character  and 
direct  evidence  of  the  good  or  bad  moral  disposition  of  the 
accused.  Evidence  of  a  good  disposition  is  not  admissible  for 
him,  to  mitigate  or  excuse  his  act,2  or  of  a  bad  or  malicious  dis- 
position to  show  the  probability  of  his  guilt.3  Accordingly  the 
opinion  of  a  witness  that  a  prisoner  accused  of  murder  was  a 
kind-hearted  man,4  or  as  to  what  his  disposition  was  when 
crossed  or  misused,5  is  inadmissible.  But  the  state  has  been 
permitted  to  show  that  the  accused  had  been  in  active  military 
service,  and  was  thus  probably  disposed  to  acts  of  bloodshed 
and  to  place  a  low  estimate  on  human  life.6 

'Com.  v.  Webster,  5  Cush.  (Mass.)  v.  People,  88  N.  Y.  196,  200;  Fitzpat- 

295,  324.     Cf.  McLain  v.  Com.,  99  Pa.  rick  v.  Com.,  81  Ky.  357,  360;  Sawyer 

St.  86.     Evidence  of  good   character  v.  People,  91  N.  Y.  667,  668;  Yoght  v. 

has  been   sometimes   confined  in  its  State,  145  Ind.  12,  43  N.  E.  Rep.  1049; 

operation   to  those  crimes  the  com-  and   see   1  Crim.  Law  Mag.  331-335. 

mission  of  which  involves  some  moral  Contra,  State  v.  Lee,  22  Minn.  407,  410 ; 

turpitude.     It  is  then  not  relevant  in  State  v.  Sterett,  68  Iowa  76,  78. 

mere  statutory  offenses'  not  malum  in  3  Reg.    v.   Rowton,    10    Cox    C.    C. 

se.     Com.  v.  Nagle,  157  Mass.  554,  32  25,  29. 

N.  E.  Rep.  861.  4  Cathcart  v.  Com.,  37  Pa.  St.  108. 

2  State  u.  Emery,  59  Vt.  84,  90;  Mur-  5  Thomas  v.  People,  67  N.  Y.  218, 

phy  v.  People,9  Colo.  435,448 ;  Hirsch-  223. 

man  v.  People,  101  111.  568;  Sindram  6  State  v.  Moelchen,  53  Iowa  310. 


L06  CRIMINAL  EVIDENCE.  §  86 

§  86.  Number  of  witnesses  to  character. — It  is  sometimes 
provided  by  statute  that,  under  circumstances  specifically  de- 
scribed, the  witnesses  to  reputation  called  by  the  accused  in  a 
criminal  trial  shall  not  exceed  a  given  number  unless  the 
party  calling  them  shall  provide  for  the  payment  of  the  fees 
for  the  witnesses  in  excess.1  Such  statutes,  it  has  been  held, 
do  not  violate  a  constitutional  provision  that  the  accused  shall 
be  entitled  to  compulsory  process  to  procure  the  attendance  of 
his  witnesses.2 

1  For  an  example  of  such  a  statute,  ten  witnesses  to  his  character  at  pub- 
see  Ohio  R.  S.  7287.  lie  expense.    If  he  desires  more  he 

2  State  v.  Stout,  49  Ohio  St.  270,  30  must  pay  their  expenses.  The  limi- 
N.  E.  Rep.  437,  438.  Their  purpose  is  tation  is  a  reasonable  one,  and  in  no 
to  prevent  the  waste  of  time  and  way  deprives  the  accused  of  any  con- 
money.  The  accused  may,  under  such  stitutional  right. 

a  statute,   compel  the  attendance  of 


CHAPTER   VIII. 

PROOF    OF    OTHER    CRIMES. 

§87.   General  rule  regarding  evidence  §90.   Relevant  evidence  not  inadmis- 

of    crimes    other    than    that  sible  because  indirectly  prov- 

charged  in  the  indictment.  ing  or  tending  to  prove  an- 

88.  Connected       or      intermingled  other    crime  —  Dissimilar 

crimes   forming  parts  of  one  crimes  united  in  motives, 

whole.  91.    Identity  of  means  employed  in 

89.  Evidence  of  other  offenses  to  several  crimes  —  Identity    of 

show    specific     intention    or  accused, 

guilty  knowledge.  92.   Sexual  crimes. 

§  87.  General  rule  regarding  evidence  of  crimes  other  than 
that  charged  in  the  indictment. — The  rule  which  requires  that 
all  evidence  which  is  introduced  shall  be  relevant  to  the  guilt 
or  the  innocence  of  the  accused  is  applied  with  considerable 
strictness  in  criminal  proceedings.  The  wisdom  and  justness 
of  this,  at  least  from  the  defendant's  stand-point,  are  self-evi- 
dent. He  can  with  fairness  be  expected  to  come  into  court 
prepared  to  meet  the  accusations  contained  in  the  indictment 
only,  and,  on  this  account,  all  the  evidence  offered  by  the  pros- 
ecution should  consist  wholly  of  facts  which  are  within  the 
range  and  scope  of  its  allegations.  The  large  majority  of  per- 
sons of  average  intelligence  are  untrained  in  logical  methods  of 
thinking,  and  are  therefore  prone  to  draw  illogical  and  incor- 
rect inferences,  and  conclusions  without  adequate  foundation. 
From  such  persons  jurors  are  selected.  They  will  very  nat- 
urally believe  that  a  person  is  guilty  of  the  crime  with  which 
he  is  charged  if  it  is  proved  to  their  satisfaction  that  he  has 
committed  a  similar  offense,  or  any  offense  of  an  equally  heinous 
character.  And  it  can  not  be  said  with  truth  that  this  tendencj' 
is  wholly  without  reason  or  justification,  as  every  person  can 

(107) 


108 


CRIMINAL    EVIDENCE. 


§  88 


bear  testimony  from  his  or  her  experience,  that  a  man  who  will 
commit  one  crime  is  very  likely  subsequently  to  commit  an- 
other of  the  same  description. 

To  guard  against  this  evil,  and  at  the  same  time  to  avoid  the 
delay  which  would  be  incident  to  an  indefinite  multiplication 
of  issues,  the  general  rule  (to  which,  however,  some  very  im- 
portant exceptions  may  be  noted)  forbids  the  introduction  of 
evidence  which  will  show,  or  tend  to  show,  that  the  accused 
has  committed  any  crime  wholly  independent  of  that  offense 
for  which  he  is  on  trial.1  To  this  general  rule  there  are  a  very 
few  exceptions  which  have  been  permitted  from  absolute  neces- 
sity, to  aid  in  the  detection  and  punishment  of  crime.  These 
exceptions  are  carefully  limited  and  guarded  by  the  courts  and 
their  number  should  not  be  increased.  We  shall  now  proceed 
to  consider  them  in  detail. 


§  88.  Connected  or  intermingled  crimes  forming  parts  of 
one  whole. — If  several  crimes  are  intermixed,  or  blended  with 
one  another,  or  connected  so  that  they  form    an    indivisible 


People  v.  Corbin,  56  N.  Y.  363; 
People  v.  Sharp,  107  N.  Y.  427;  Cole- 
man v.  People,  55  N.  Y.  81 ;  State  v. 
Shuford,  69  N.  Car.  486,  493;  State  v. 
Jeffries,  117  N.  Car.  727;  People  v. 
Gibbs,  93  N.  Y.  470 ;  State  v.  Murphy, 
84  N.  Car.  742 ;  Snyder  v.  Com.,  85  Pa. 
St.  519,  521 ;  Mason  v.  State,  42  Ala. 
532,  537 ;  Coble  v.  State,  31  Ohio  St. 
100,  102;  State  v.  Boyland,  24  Kan. 
186,  187 ;  Clapp  v.  State,  94  Tenn.  186, 
202,  203,  30  S.  W.  Rep.  214 ;  People  v. 
Fowler,  104  Mich.  449,  62  N.  W.  Rep. 
572;  People  v.  Baird,  104  Cal.  462,  464, 
38  Pac.  Rep.  310;  People  v.  Bowen,  49 
Cal.  654;  State  v.  Moberly,  121  Mo. 
604,  610;  Painter  v.  People,  147  111. 
444,447,  463;  Garrison  v.  People,  87 
111.  96 ;  State  v.  Burk,  88  Iowa  661, 667; 
State  v.  Crawford,  39  S.  Car.  343;  Cot- 
ton v.  State  (Miss.),  17  So.  Rep.  372; 
State  v.  Bates,  46  La.  An.  849,  851 ; 
Com.  v.  Jackson,  132  Mass.  16-21, 
citing  many  cases ;  Holder  v.  State,  58 


Ark.  473,  25  S.  W.  Rep.  279;  State  v. 
La  Page,  57  N.  H.  245;  Stone  v.  State, 
4  Humph.  (Tenn.)  27;  People  v. 
Stout,  4  Parker  Crim.  Rep.  71,  127; 
People  v.  Dowling,  84  N.  Y.  478;  State 
v.  Kelley,  65  Vt.  531 ;  Turner  v.  State, 
102  Ind.  425,  427;  People  v.  Thacker 
(Mich.,  1896),  66  N.  W.  Rep.  562; 
Meyer  v.  State  (N.  J.,  1897),  36  Atl. 
Rep.  483;  State  v.  Reynolds  (Kan., 
1896),  47  Pac.  Rep.  573;  Ware  v. 
State  (Tex.,  1897),  38  S.  W.  Rep.  198; 
Tyrrell  v.  State  (Tex.,  1897),  38  S.  W. 
Rep.  1011 ;  Rhea  v.  State  (Tex.,  1897), 
38  S.  W.  Rep.  1012;  Shears  v.  State 
(Ind.,  1897),  46  N.  E.  Rep.  331.  Ad- 
missions made  by  accused  before  a 
crime,  as  to  the  commission  of  other 
independent  crimes,  to  induce  a  third 
person  to  take  part  in  the  crime  are 
receivable.  State  v.  Hayward,  62 
Minn.  474,  65  N.  W.  Rep.  63;  Mp- 
Swean  v.  State  (Ala.,  1897),  21  So. 
Rep.  211. 


§  88 


PROOF    OF    OTHER    CRIMES. 


109 


criminal  transaction,  and  a  complete  account  of  any  one  of 
them  can  not  be  given  without  showing  the  others,  any  or  all 
of  them  are  admissible  against  a  defendant  on  trial  for  any 
offense  which  is  itself  a  detail  of  the  whole  criminal  scheme.1 
No  separate  and  isolated  crime  can  be  given  in  evidence.  In 
order  that  one  crime  may  be  relevant  as  evidence  of  another, 
the  two  must  be  connected  as  parts  of  a  general  and  composite 
scheme  or  plan.2  Thus  the  movements  of  the  accused  prior  to 
the  instant  of  the  crime  are  always  relevant  to  show  that  he 
was  making  preparations  to  commit  it.  Hence,  on  a  trial  for 
homicide,  it  is  permissible  to  prove  that  the  accused  killed  an- 
other person  during  the  time  he  was  preparing  for  or  was  in 
the  act  of  committing  the  homicide  for  which  he  is  on  trial.8 
And,  generally,  when  several  similar  crimes  occur  near  each 
other,  either  in  time  or  in  locality,  as,  for  example,  several  burg- 
laries or  incendiary  fires  upon  the  same  night,  it  is  relevant 


'Rex  r.  Ellis,  6  B.  &  Cr.  139,  145; 
Com.  v.  Call,  21  Pick.  (Mass.)  515, 
522 ;  Com.  v.  Sturtivant,  117  Mass.  122, 
132;  State  v.  Valwell,  29  Atl.  Rep. 
1018,  66  Vt.  558,  562;  People  v.  Bidle- 
man,  104  Cal.  608,  38  Pac.  Rep.  502; 
People  v.  Dailey,  143  N.  Y.  638,  73 
Hun  16;  Mixon  v.  State  (Tex.,  1895), 

31  S.  W.  Rep.  408;  Dawson  v.  State, 

32  Tex.  Cr.  Rep.  535;  Wilkerson  v. 
State,  31  Tex.  Cr.  Rep.  86,  90;  Davis  v. 
State,  32  Tex.  Cr.  Rep.  377;  Turner  v. 
State,102  Ind.425,  427 ;  Frazierv.  State, 
135  Ind.  38,  41 ;  Bottomley  v.  United 
States,  1  Story  C.  C.  135 ;  State  v.  Fol- 
well,  14  Kan.  105;  Walters  v.  People, 
6  Park  Cr.  Rep.  (N.  Y.)  15,  22;  Reese 
v.  State,  7  Gu.  373;  Reg.  v.  Bleasdall, 
2  Carr.  &  K.  765;  People  v.  Haver,  4 
N.Y.  Crim.  Rep.  171;  Phillips  v.  Peo- 
ple, 57  Barb.  (N.  Y.)  353,  42  N.Y.  200; 
State  v.  Desroehes,  48  La:  An.  428,  19 
So.  Rep.  250;  State  v.  Williamson,  106 
Mo.  162,  170;  People  v.  Pallister,  138 
N.  Y.  601,  605;  Hickam  r.  People,  137 
111.  75,  27  N.  E.  Rep.  88,  89;  State  v. 
Testermann,  68  Mo.  408,  415 ;  Killins  v. 


State,  28  Fla.  313,  334 ;  State  v.  Gainor, 
84  Iowa  209,  50  N.  W.  Rep.  947;  Pit- 
ner  v.  State  (Tex.,  1897),  39S.W.  Rep. 
662;  People  v.  Foley,  64  Mich.  148, 
157,31  N.  W.  Rep.  94;  Heath  v.  Com., 
1  Rob.  (Ya.)  735,  743;  Crews  v.  State, 
34  Tex.  Cr.  Rep.  533, 31  S.W.  Rep.  373 ; 
Brown  v.  Com.,  76  Pa.  St.  319,  337; 
Com.  v.  Robinson,  146  Mass.  571,578; 
Morris  v.  State,  30  Tex.  App.  95;  State 
v.  Perry,  136  Mo.  126,  37  S.W.  Rep.  804. 

2  The  theory  upon  which  this  evi- 
dence is  relevant  is  that  the  motive 
prompting  the  commission  of  the  sev- 
eral crimes  is  the  same,  or  that  the 
objects  aimed  at  are  identical.  Thus, 
for  example,  where  it  was  alleged 
that  the  accused  had  poisoned  his 
wife  for  the  purpose  of  securing  her 
property,  the  state  was  permitted  to 
prove  that  a  few  days  before  he  had 
administered  poison  to  her  mother 
with  the  same  end  in  view.  Goersen 
v.  Com.,  99  Pa.  St.  388. 

3  Horn  v.  State,  98  Ala.  23,  15  So. 
Rep.  278.     See  cases  cited,  §§  321,  376. 


110 


CRIMINAL    EVIDENCE. 


§  89 


to  show  that  the  accused,  being  present  at  one  of  them,  was 
present  at  the  others  if  the  crimes  seem  to  be  connected.1 
Some  connection  between  the  crimes  must  be  shown  to  have 
existed  in  fact  and  in  the  mind  of  the  actor,  uniting  them  for 
the  accomplishment  of  a  common  purpose,  before  such  evi- 
dence can  be  received.2  This  connection  must  clearly  appear 
from  the  evidence.  Whether  any  connection  exists  is  a  ju- 
dicial question.  If  the  court  does  not  clearly  perceive  it,  the 
accused  should  be  given  the  benefit  of  the  doubt  and  the  evi- 
dence should  be  rejected.  The  minds  of  the  jurors  must  not 
be  poisoned  and  prejudiced  against  the  prisoner  by  receiving 
evidence  of  this  irrelevant  and  dangerous  description.3  It  is 
immaterial  (at  least  where  the  evidence  of  another  crime 
is  offered  to  show  guilty  intent  or  knowledge)  that  the  other 
crime  was  committed  before  or  after  the  crime  for  which  the 
accused  is  on  trial.4 

§  89.    Evidence  of  other  offenses  to  show  specific  intention 
or  guilty  knowledge. — Another  exception    to  the  rule  occurs 


1 "  Where  several  felonies  are  con- 
nected as  parts  of  one  scheme  or  plot, 
like  the  acts  of  a  drama,  and  all  tend 
to  a  common  end,  then  they  may  be 
given  in  evidence  to  show  the  process 
of  motive  and  design  in  the  final 
crime.  The  several  crimes  are  parts 
of  a  chain  of  cause  and  consequence, 
so  linked  together  as  to  be  necessarily 
provable  as  several  parts  of  the  same 
act  or  crime."  The  court  in  People u. 
Stout,  4  Park.  Cr.  Rep.  (N.Y.)  71,  127; 
Mason  v.  State,  42  Ala.  532,  535,  539. 
See  Thomas  v.  State,  103  Ind.  419,  432. 

2  In  Hall  v.  People,  6  Park.  Cr.  Rep. 
(N.Y.)  671,  the  defendant  was  charged 
with  stealing  certain  articles.  It  was 
held  error  to  permit  proof  that  other 
articles  stolen  from  another  party  were 
found  in  his  possession.  The  court 
said:  "This  testimony  is  loose  and 
dangerous.  The  people  might  have 
shown  the  condition  of  things  where 


the  property  was  found,  but  they 
could  not  prove  another  felony,  unless 
it  was  so  strongly  connected  with  the 
felony  charged  as  to  prove,  or  strongly 
tend  to  prove,  that  the  man  who  com- 
mitted the  one  was  guilty  of  the 
other."  But  when  two  persons  in  a 
stage  coach  were  robbed  at  the  same 
time,  it  was  held  that  on  the  trial  of 
the  accused  for  robbing  one  of  them, 
it  might  be  shown  that  property  be- 
longing to  the  other  was  found  on 
him.     Rex  v.  Rooney,  7  C.  &  P.  517. 

3  See  remarks  of  Agnew,  J.,  in 
Shaffner  ».  Com.,  72  Pa.  St.  60,  and  Cf. 
People  v.  Sharp,  107  N.  Y.  427. 

4  People  v.  Shulman,  80  N.  Y.  373; 
State  v.  Williams,  76  Me.  480;  Reg.  v. 
Cotton,  12  Cox  C.  C  400 ;  Bielschofsky 
v.  People,  3  Hun  (N.  Y.)  40;  State  v. 
Bridgman,  49  Vt.  202,  210;  Williams 
^.People,  166111. 132,46N.E.  Rep.  749. 


§89 


PROOF    OF    OTHKR    CRIMES. 


Ill 


when  the  intention  of  an  act  is  material.  Thus,  suppose  the 
question  is,  was  a  given  act,  either  by  the  accused,  or  by  some 
other  person,  intentional  or  accidental?  Here  it  is  relevant  to 
prove  that  the  person  whose  intention  is  in  question  had  per- 
formed acts  of  a  precisely  similar  nature  before.  And  if  it  be 
found  that  he  has  performed  many  such  acts,  we  have  the  best 
of  grounds  for  drawing  the  conclusion  that  the  act,  in  the 
present  instance,  is  intentional  and  not  accidental.1 

Evidence  of  similar  and  independent  crimes  (but  not  of 
those  which  are  dissimilar)  is  often  relevant  to  show  the 
presence  of  some  specific  intent.  Thus,  evidence  of  similar 
forgeries  has  been  received  to  prove  the  intent  to  defraud, 
which  is  essential  in  forgery;2  or  of  attempts  at  arson  to  prove 
that  a  burning  was  not  the  result  of  accident. 

So,  when  it  is  material  to  show  that  a  given  act  was  done 
with  a  fraudulent  intention,  as,  for  example,  in  a  prosecution 


People  v.  Seaman  (Mich.,  1896), 65 
N.  W.  Rep.  203.  Where  upon  the 
trial  of  one  for  a  homicide  by  poison- 
ing, the  defendant  admits  the  death 
by  poisoning,  but  alleges  that  the 
poison  was  accidentally  taken  or  ad- 
ministered, it  is  relevant  to  show  that 
other  persons,  as,  for  example,  rela- 
tives and  friends  with  whom  the  ac- 
cused came  in  contact,  had  died,  previ- 
ous to  the  present  crime  by  the  same 
poison.  Reg.  v.  Cotton,  12  Cox  C.  C. 
400,  1  Green's  Cr.  Law.  Rep.  102, 104; 
Goersen  v.  Com.,  99  Pa.  St.  388;  Zol- 
doske  v.  State,  82  Wis.  580,  597. 

2  Langford  v.  State,  33  Fla.  233 ;  Peo- 
ple v.  Sanders  114  Cal.,  216,  46  Pac. 
Rep.  153;  Anson  v.  People,  148  111. 
494,  506;  People  v.  Bidleman,  104  Cal. 
608,  615 ;  State  v.  Valwell,  66  Vt.  558, 
562;  State  v.  Smalley,  50  Vt.  736,  750; 
Com.  v.  McCarthy,  119  Mass.  354,355; 
Com.  v.  Bradford,  126  Mass.  42,45; 
Coleman  v.  People,  55  N.  Y.  81,  91; 
Stafford  v.  State,  55  Ga.  591,  592; 
Pearce  v.  State,  40  Ala.  720 ;  State  v. 
Neagle,  65  Me.  468,  469 ;  State  v.  Ran- 


sell,  41  Conn.  433,  441 ;  State  v.  Plunk- 
ett,  64  Me.  534,  538 ;  People  v.  Ever- 
hardt,  104  N.  Y.  591 ;  Bishop  v.  State, 
55  Md.  138 ;  State  v.  Saunders,  68  Iowa 
370 ;  Lindsey  v.  State,  38  Ohio  St.  507 ; 
Meister  v.  People,  31  Mich.  99;  Peo- 
ple v.  Hennsler,  48  Mich.  49;  State  v. 
Habib,  18  R.  I.  558,  30  Atl.  Rep.  462; 
State  v.  Crawford,  39  S.  Car.  343,  17 
S.  E.  Rep.  799;  Devoto  v.  Com.,  3 
Mete.  (Ky.)  417,  419;  People  v.  Rando, 
3  Park  Cr.  Rep.  335,  336 ;  Shriedley  v. 
State,  23  Ohio  St.  130, 142 ;  Yarborough 
v.  State,  41  Ala.  405,  2  Russell  on  Cr. 
251 ;  Rex  v.  Dunn,  1  Moody  C.  C.  146. 
McGlasson  v.State(Tex.,1897),40  S.W. 
Rep.  503.  "  In  all  cases  where  the  guilt 
of  the  party  depends  upon  the  intent, 
purpose,  or  design  with  which  the  act 
is  done,  or  upon  his  guilty  knowledge, 
I  understand  it  to  be  the  general  rule 
that  collateral  facts  may  be  examined 
into  for  the  purpose  of  establishing 
such  guilty  intent,  design,  purpose,  or 
knowlege."  Bottomley  v.  United 
States,  1  Story  135,  143. 


112 


CRIMINAL    EVIDENCE. 


90 


for  obtaining  goods  by  false  pretenses,  other  disconnected  acts 
in  which  the  presence  of  fraud  is  recognized  may  be  proved.1 

§90.  Relevant  evidence  not  inadmissible  because  indirectly 
proving  or  tending  to  prove  another  crime — Dissimilar  crimes 
united  in  motives. — All  evidence  is  relevant  which  throws,  or 
tends  to  throw,  any  light  upon  the  guilt  or  the  innocence  of 
the  prisoner.  And  relevant  evidence  which  is  introduced  to 
prove  any  material  fact  ought  not  to  be  rejected  merely  be- 
cause it  proves,  or  tends  to  prove,  that  at  some  other  time  the 
accused  has  been  guilty  of  some  other  separate,  independent 
and  dissimilar  crime.  The  general  rule  is  well  settled  that 
all  evidence  must  be  relevant.  If  evidence  is  relevant  upon 
the  general  issue  of  guilt,  or  innocence,  no  valid  reason  exists 
for  its  rejection  merely  because  it  may  prove,  or  may  tend  to 
prove,  that  the  accused  committed  some  other  crime,  or  may 
establish  some  collateral  and  unrelated  fact.2 


1  Com.  v.  Tuckerman,  10  Gray  173 
Com.  v.  Eastman,  1  Cush.  189,  217 
Thomas  ».  State,  103  Ind.  419,  432 
People  v.  Schooley  (N.  Y.),  89  Hun 
391.  See,  also,  §§89,  423,  438.  "A 
man  may  have  one  forged  or  counter- 
feit note  in  his  possession  and  yet, 
with  reason,  be  assumed  to  be  igno- 
rant of  its  true  character.  But  if  he 
has  been  proved  to  have  had  many 
such  false  instruments  in  his  hands  at 
various  times ;  and  particularly,  if  it 
appears  that  he  knew  that  they  were 
suspected  of  being  forged,  he  can  not 
complain  if  the  inference  is  drawn 
that  he  was  aware  of  their  character." 
It  is  reversible  error  for  the  court  to 
fail  to  instruct  the  jury  that  evidence 
of  other  crimes  should  only  be  con- 
sidered upon  the  question  of  the  in- 
tent. Martin  v.  State  (.Tex.,  1896),  35 
S.  W.  Rep.  976;  Thornley  v.  State 
(Tex.,  1896),  35  S.  W.  Rep.  981. 

2  Moore  v.  United  States,  .150  U.  S. 
57;  Com.  v.  Call,  21  Pick.  515,522; 


Com.  v.  Choate,  105  Mass.  451,  458 
State  v.  Fontenot,  48  La.  An.  305 
Mason  v.  State,  42  Ala.  532,  537,  539 
Reg.  v.  Lewis,  6C.  &  P.  161,  163;  Reg. 
v.  Crickmer,  16  Cox  C.  C.  701 ;  People 
r.Stout,  4  Parker  Cr.Rep.71, 114 ;  Paint- 
er v.  People,  147  111.  444, 447,  463 ;  State 
v.  Walton,  114  N.  Car.  783,  18  S.  E. 
Rep.  945.  In  the  case  of  Walker  v. 
Com.,  1  Leigh  (Va.),  on  p.  574,  the 
court  says:  "It  frequently  happens 
that  as  the  evidence  of  circumstances 
must  be  resorted  to,  for  the  purpose 
of  proving  the  commission  of  the  par- 
ticular offense  charged,  the  proof  of 
these  circumstances  involves  the  proof 
of  other  acts,  which  may  be  criminal, 
or  may  be  apparently  innocent.  In 
such  cases  it  is  proper  that  the  chain 
of  events  should  be  unbroken.  If  one 
or  more  links  of  this  chain  consist  of 
circumstances,  which  tend  to  prove 
the  prisoner  has  been  guilty  of  other 
crimes  than  that  charged,  this  is  no 
reason  why  the  court  should  exclude 


§  90  PROOF   OF   OTHER    CRIMES.  113 

Thus,  the  fact  that  the  evidence  introduced  to  prove  the 
motive  of  the  crime  for  which  the  accused  is  on  trial  points 
him  out  as  guilty  of  an  independent  and  totally  dissimilar 
offense  is  not  enough  to  bring  about  its  rejection,  if  it  is  other- 
wise competent.1  Under  this  exception  to  the  general  rule, 
where  facts  and  circumstances  amount  to  proof  of  another 
crime  than  that  charged,  and  it  appears  probable  that  the 
crime  charged  grew  out  of  the  other  crime,  or  was  in  any  way 
caused  by  it,  the  facts  and  circumstances  may  be  proved  to 
show  the  motive  of  the  accused.2  Thus,  it  may  be  shown  that 
the  victim  of  a  homicide,  for  which  the  defendant  is  on  trial, 
was  a  police  officer,  or  other  person  engaged  in  investigating 
the  circumstances  of  another  prior  and  independent  crime  of 
which  the  accused  was  suspected.3 

And,  generally,  if  one  crime  may  have  been  perpetrated  for 
the  purpose  of  aiding  in  the  commission  or  concealment  of  an- 
other, or  to  aid  the  escape  of  the  accused,  the  incidental  crime 
may  be  shown  as  furnishing  a  motive  for  the  commission  of 
the  crime  for  which  the  accused  has  been  indicted.4  Hence, 
adultery  committed  by  the  accused  with  a  woman  may  be 
proved  upon  his  trial  for  the  killing  of  the  woman's  husband. 
For  it  is  obvious  that  an  illicit  intercourse,  of  which  the  adult- 
ery was  a  part,  proved  to  exist  between  the  prisoner  and  the 
wife  of  his  victim,  would  be  a  strong  circumstance  for  the  jury 

these  circumstances.    They  are  so  en-  s  Moore  v.  United  States,  150  U.  S. 

tirely  connected  and  blended  with  the  57,  61 ;  Dunn  v.  State,  2  Ark.  229. 

main   fact  that  they   can  not  be  de-  4  Willinghamv.State,33Tex.Cr.Rep. 

parted  from  with  propriety,  and  there  98,  26  S.  W.  Rep.  834 ;  Dunu  v.  State, 

is  no  reason  why  the  criminality  of  2  Ark.  229;  State  v.  Pancoast  (N.  Dak., 

such  intimate  and  connected  circum-  1896),  67  N.  W.  Rep.  1052 ;  State  v.  Sey- 

stances  should   exclude    them    more  more  (Iowa,  1895),  63  N.W.  Rep.  661 ; 

than  other  facts  apparently  innocent."  Painters.  People,  147111.444,  447,  463; 

1  Brown   v.  State,  26  Ohio  St.  176,  People  v.  Harris,  136  N.  Y.  423;  Crass 

181;  People  v.  Harris,   136  N.  Y.  423;  v.  State,  31  Tex.  Cr.  Rep.  312,  315; 

Farris  v.  People,  129  111.  521;  State  v.  People  v.  Stout,  4  Park.  Cr.  Rep.  71, 

Madigan,  57  Minn.  425,  59  N.W.  Rep.  115;    Rex  v.   Clewes,  4  C.  &  P.  221. 

490,492.  See  post,  §321. 

2 Com.   v.   Ferrigan,  44  Pa.  St.  386, 
387. 

8-Cr.  Ev. 


114  CRIMINAL  EVIDENCE.  §  91 

to  consider  in  determining  the  existence  of  a  motive  prompt- 
ing the  accused  to  desire  the  removal  of  the  latter  in  order  that 
he  might  obtain  possession  of  the  woman.1  The  two  crimes, 
though  dissimilar,  are  so  far  unified  in  motive  that  they  are 
really  parts  of  a  single  transaction.  They  were  both  designed 
to  bring  about  a  single  result.  The  subsidiary  crime  is  not 
relevant,  because  any  inference  that  the  defendant  killed  the 
husband  can  be  drawn  directly  and  universally  from  the  fact 
that  he  debauched  the  wife.  It  is  received  solely  to  show  that 
the  defendant,  having  committed  adultery  with  the  wife,  was 
possessed  of  a  motive,  which  might,  under  the  circumstances, 
prompt  him  to  the  greater  crime,  that  he  might  remove  the 
person  who  stood  in  the  way  of  the  enjoyment  of  his  illicit 
passion.8 

§91.  Identity  of  means  employed  in  several  crimes — Iden- 
tity of  accused. — Where  a  crime  has  been  committed  by  some 
peculiar,  extraordinary  and  novel  means,  or  in  a  peculiar  or 
extraordinary  manner,  evidence  of  a  similar  crime  committed 
by  the  accused,  by  the  same  means,  or  in  the  same  manner, 
has  been  received.  Thus,  where  the  accused  is  charged  with 
arson  in  setting  fire  to  a  building  by  means  of  a  box  or  other 
apparatus  contrived  solely  for  incendiary  purposes,  it  may  be 
shown  that  he  had  employed  a  similar  device  elsewhere,  with 
the   same  object  in   view.3 

So,  sometimes,  it  is  necessary  to  prove  a  collateral  offense 
in  order  to  identify  the  accused  or  some  article  connected  with 

1  People  v.  Stout,  4  Parker  Cr.  Rep.  not  accidental;  to  show  guilty  knowl- 

71,   115,    132 ;  State  v.   Rash,  12  Ired.  edge  and  purpose  and  to  rebut  any 

(N.  C.)  382,  384;  Pierson  v.  People,  79  inference  of  mistake;    in   death  by 

N.  Y.  424,  435,  436;  Templeton  v.  Peo-  poison  to  show  defendant  knew  the 

pie,  27  Mich.  501 ;  Com.  v.  Ferrigan,  substance  administered  to  be  poison  ; 

44  Pa.  St.  386,  387;  State  v.  Watkins,  to  show  him  to  be  one  of  an  organiza- 

9  Conn.  47,  53.  tion  banded  together  to  commit  simi- 

2 In  Goersen  v.  Com.,  99  Pa.  St.  388,  lar  crimes  and  to  connect  the  other 

the  court  said:     "Under  some    cir-  offense  with  the  one  charged  as  part 

cumstances   evidence  of  another  of-  of  the  same  transaction." 

fense  may  be  given.     It  may  be  done  3  Com.  v.  Choate,  105  Mass.  451,  457 ; 

to  establish  identity,  to  show  the  act  Rex  v.  Fursey,  6  C.  &  P.  81. 
charged  was  intentional  and  willful, 


§92 


PROOF    OF    OTIIKR    CRIMES. 


115 


the  crime.1  Hence,  where  the  accused  is  on  trial  for  arson,  it 
may  be  shown  that  goods,  which  were  stored  in  the  burned 
building,  were  found  in  his  possession,  though  this  evidence 
tends  to  prove  him  guilty  of  the  larceny  of  the  goods.  And 
evidence  that  tracks  found  in  the  vicinity  of  each  of  two 
houses,  which  had  been  broken  into,  corresponded  with  the 
foot-wear  of  the  accused  is  admissible  as  tending  to  prove  his 
whereabouts  on  the  night  in  question.2 


§  92.  Sexual  crimes. — Crimes  involving  illicit  sexual  inter- 
course of  any  sort  constitute  another  exception  to  the  general 
rule.  Thus,  under  an  indictment  for  adultery  or  incest  evi- 
dence of  the  commission  of  similar  crimes  by  the  same  parties 
prior  to  the  offense  alleged  is  received.3  In  all  such  cases  the 
mutual  relations  and  the  disposition  of  the  parties  towards 
one  another  are  relevant  upon  the  question,  did  they  have 
illicit  intercourse?  And,  it  is  a  very  fair  inference  that  the 
accused  was  guilty  of  the  crime  alleged,  if  it  affirmatively 
appears  that  he  had  committed  acts  of  adultery  or  incest  with 
the  same  person  on  prior  occasions.4 


^osc.  Cr.  Ev.  90;  Rex  v.  Rooney, 
7  C.  &.  P.  517,  518 ;  United  States  v. 
Boyd,  45  Fed.  Rep.  851 ;  Osborne  v. 
People,  2  Park.  Cr.  Rep.  583.  Contra, 
Rex  v.  Westwood,  4  C  &  P.  547. 

2Frazier  v.  State,  135  Ind.  38,  41, 
34  N.  E.  Rep.  817. 

3Callisonv.  State  (Tex.,  1897),  39  S. 
W.  Rep.  300;  Com.  v.  Bell,  166  Pa.  St. 
405,  411,  31  Atl.  Rep.  123;  People  v. 
Patterson,  102  Cal.  239,  244;  States. 
Bridgman,  49  Vt.  202;  State  v.  Mar- 
vin, 35  N.  H.  22,  28,  29;  State  v.  Wal- 
lace, 9  N.  H.  515,  517,  518;  Com.  v. 
Nichols,  114  Mass.  285,  288;  Cora.  v. 
Bowers,  121  Mass.  45,  46;  State  v. 
Williams,  76 Me.  480;  State  v.  Pippin, 


88  N.  Car.  646,  647 ;  State  v.  Kemp,  87 
N.  Car.  538,  540;  People  v.  Skutt,  96 
Mich.  449,  450;  People  v.  Jenness,  5 
Mich.  305,  319;  McLeod  v.  State,  35 
Ala.  395,  398;  Lawson  v.  State,  20 
Ala.  65 ;  Proper  v.  State,  85  Wis.  615 ; 
State  v.  Markins,  95  Ind.  464;  Lef- 
forge  v.  State,  129  Ind.  551 ;  Lovell  v. 
State,  12  Ind.  18.  Evidence  of  illicit 
intercourse  indulged  in  by  the  same 
parties  subsequently  to  the  date  upon 
which  the  adultery  is  laid  was  admit- 
ted in  State  v.  Williams,  76  Me.  480. 
But  the  weight  of  the  cases  would 
seem  to  exclude  subsequent  adulter- 
ous acts.  See  cases  cited. 
4  See  §381. 


CHAPTER  IX. 

DECLARATIONS  WHICH  ARE  A  PART  OF  THE  RES  GESTAE. 

§  93.   Scope  and  limit  of  facta  and  §  97.   Interval  for  consideration  or 

declarations  forming  a  part  taking  advice, 

of  the  res  gestae.  98.   Mental    and    physical    condi- 

94.  Necessity  for  approximation  of  tions  as  influencing  the  dec- 

unity  in  time,  place  and  mo-  larations. 

tive  prompting  the  declara-  99.   Admissibility  for  the  accused. 

tions.  100.   Declarations  uttered  prior  to 

95.  Declarations  must  explain  and  the  crime. 

illustrate  the  main  transac-        101.   Declarations     by    bystanders 
tion.  and  other  third  persons. 

96.  Contemporaneous  character  of 

the  declarations. 

§  93.  Scope  and  limit  of  facts  and  declarations  forming  the 
res  gestae. — The  facts  embraced  in  the  commission  of  any  crime, 
and  which  are  essential  to  be  proved,  seldom  stand  alone  or 
exist  unconnected  with  others  which  are  perhaps  less  directly- 
involved.  Every  occurrence  which  is  the  result  of  human 
agency  is  more  or  less  implicated  and  involved  with  other 
occurrences.  The  one  may  be  the  cause  or  the  result  of  the 
other,  or  they  may  be  collaterally  connected  or  related. 

Hence  it  is  a  rule  that  evidence  of  connected,  precedent  or 
surrounding  circumstances  is  admitted  to  show  the  probability 
of  the  main  fact  when  it  is  natural  to  assume  a  connection 
between  the  main  and  the  subsidiary  fact  or  occurrence.1 

This  is  well  illustrated  by  the  use  and  application  of  circum- 
stantial evidence.  Thus,  suppose  the  question  is,  did  A.  kill 
B.  by  shooting  him?  Evidence  would  be  admissible  to  prove 
as  part  of  the  res  gestte  or  main  transaction,  and  as  a  natural 
result  of  it,  that  A.  was  seen  a  few  minutes  after  the  killing  in 

lowers  v.  People,  42  111.  App.  427,  431. 
(116) 


§  93     DECLARATIONS  WHICH  AUK  A   PART  OF  THE   RES  GEST/E.     117 

the  neighborhood  with  a  recently  discharged  and  smoking 
pistol  in  his  hands.  But  obviously  such  a  fact  witnessed  a 
week  after  the  crime  would  be  wholly  irrelevant,  as  it  could  not 
be  a  natural  result  of  the  transaction  for  which  A.  is  on  trial, 
or  connected  with  it. 

The  principles  just  enumerated  regulate  the  admission  of 
relevant  facts.  Upon  similar  principles  the  declarations  of 
participants  referring  to  such  facts  are  also  received  without 
producing  the  declarant. 

For  example,  let  us  suppose  that  A.,  when  discovered  with 
the  smoking  pistol,  impulsively  declares  that  the  deceased  had 
attacked  him ;  or  a  party  who  has  been  assaulted  immediately 
thereafter  states  some  fact  relevant  to  the  assault  or  to  the 
purpose  or  intention  of  the  assailant.  Usually  statements  by 
third  persons  not  produced  as  witnesses  are  objectionable  as 
hearsay.  But,  it  has  been  remarked,  here  the  events  speak  for 
themselves,  giving  out  their  fullest  meaning  through  the 
language  of  the  participants.  The  spontaneous  character  of 
the  language  is  assumed  to  preclude  the  probability  of  premed- 
itation or  fabrication.  Its  utterance  on  the  spur  of  the  moment 
is  regarded,  with  a  good  deal  of  reason,  as  a  guarantee  of  truth. 
These  instinctive  utterances  are  as  much  original  evidence  as 
are  the  events  whence  they  emanate  or  of  which  they  are  a 
part.  Their  value  as  evidence  does  not  depend  in  the  slightest 
degree  upon  our  confidence  in  the  credibility  of  the  declarant, 
or  upon  our  knowledge  of  him  as  a  man  who  habitually  tells 
the  truth.  He  is  regarded  merely  as  the  channel  through 
which  the  events  describe  themselves  contemporaneously  with 
their  occurrence. 

These  declarations  must  possess  three  characteristics  :  First, 
they  must  have  been  uttered  contemporaneously  with  and  grow 
out  of  the  act  upon  which  they  have  a  bearing ;  second,  they 
must  qualify,  illustrate,  explain  or  unfold  its  character  or  sig- 
nificance, so  as,  third,  to  be  connected  with  it  in  such  a  man- 
ner that  the  declaration  and  the  act  form  a  single  and  indivisi- 
ble transaction. 


118  CRIMINAL  EVIDENCE.  §  94 

§  94.  Necessity  for  approximation  of  unity  in  time,  place 
and  motive  prompting  the  declarations. — If  the  declaration 
springs  out  of  the  event,  it  is  reasonable  to  suppose  that  the 
motive  prompting  each  is  identical.  This  identity  or  unity  of 
motive  may  have  reference  to  the  crime  itself,  or  to  the  motive 
of  persons  who  are  charged  with  it,  or  of  the  person  or  persons 
who  were  the  passive  participants.  So  the  elements  of  time 
and  place  are  very  important,  for  the  subsequent  presence  of 
persons  at  the  locus  in  quo  who  were  not  there  when  the  event 
occurred  may  suggest  the  intervention  of  new  motives.  If  a 
new  motive  has  prompted  the  declarations,  it  is  no  longer  ad- 
missible as  a  part'  of  the  original  transaction.  Hence  an 
immediate  and  sudden  accusation  of  crime,  a  confronting  with 
the  corpus  delicti,  the  flight,  pursuit  or  arrest  of  an  accused 
person,  entailing  a  change  of  scene  and  the  intervention  of 
new  persons,  both  unexpected  and  sudden,  may  rob  any  ex- 
planatory declarations  of  its  character  as  a  part  of  a  relevant 
transaction.1 

Thus,  declarations  passing  between  parties  are  admissible 
when  the  nature  of  the  relations  between  them  is  in  question, 
as,  for  example,  when  it- can  not  otherwise  be  ascertained  what 
feelings  they  entertained  towards  each  other  at  a  particular 
time.2  This  rule  applies  when  the  question  of  malice  or  pre- 
meditation is  raised  on  the  trial  of  a  homicide.  The  statements 
of  the  accused,  being  often  the  only  evidence  procurable  to  show 
his  mental  state,  are  then  received  for  or  against  him  to  show 
that  the  killing  was  deliberate  or  under  the  sudden  impulse  of 
anger  or  fear.3 

§  95.  Declarations  must  illustrate  and  explain  main  trans- 
action.— The   range'  of  events  included  by  the  term  res  gestae 

1  State  v.  Walker,  78  Mo.  380,386,  App.  222,  239;  State  v.  Gabriel,  88 
387  ;  State  v.  Johnson,  35  La.  An.  968 ;     Mo.  631. 

Little  v.  Com.,  25  Gratt.   (Va.)  921,        3  State  v.  Walker,  77  Me.  488,  491; 

924,  926;     Stephenson  v.   State,   110  Gantier  v.  State  (Tex.,  1893),  21  S.  W. 

Ind.  358,  372;  Hall  v.  State,  132  Ind.  Rep.  255;  Miller  v.  State,  31  Tex.  Cr. 

317,  321.  App.  609;  Schlemmer  v.  State,  51  N. 

2  Garber  v.  State,  4  Coldw.  (Tenn.)  J.  L.  23,  27,  29. 
161,  170;    Brumley  v.  State,  21  Tex. 


§  9G     DECLARATIONS  WHICH  ARE  A    PART  OF  THE   RES  (JKST.E.     119 

varies  according  to  the  crime  which  is  charged  and  the  par- 
ticular facts  constituting  the  criminal  transaction.  This  fact 
must  be  kept  in  view,  for  it  is  largely  the  explanatory  and 
illustrative  character  of  the  declarations  as  applied  to  the 
principal  transaction  that  admits  them  as  evidence.1 

No  general  rule  can  be  enunciated  as  to  what  declarations 
do  or  do  not  constitute  a  part  of  the  res  gestae.  The  main  ques- 
tion is:  are  they  relevant  to,  and  do  they  explain  and  illustrate 
the  facts  of  the  transaction  in  issue?  In  other  words,  can  we 
learn  from  them  something  of  the  motives  or  intention  present 
in  a  relevant  act?  For  declarations  forming  a  part  of  the  res 
gestsc.  are  only  admissible  when  the  act  with  which  they  are 
connected  is  equivocal,  or  its  nature  or  purpose,  its  motive  and 
meaning  are  doubtful,  and  the  words  of  the  person  are  invoked 
to  render  his  actions  clear  and  intelligible. 

§  96.    Contemporaneous   character   of    the   declarations.  — 

Whether  the  declaration  must  be  precisely  contemporaneous 
with  the  main  transaction  which  it  is  presumed  to  illustrate 
and  unfold,  has  been  much  discussed.  It  is  useless  to  look 
for  harmony  in  the  cases.2  The  early  rule  was  very  strict  that 
the  declaration  must  be  strictly  contemporaneous  with  the 
main  transaction  charged  as  an  offense.  So,  for  example,  the 
exclamation,  "  I  am  stabbed  !  "  uttered  by  the  deceased  at  the 
instant  of  the  fatal  blow,  would  be  received,  while  his  exclama- 

1  State  v.  Brown,  28  Ore.  147,  41  Pac.  State,  29  Tex.  App.  201,  15  S.  W.  Rep. 

Rep.  1042;  Goon  Bow  v.  People,  160  642;  Com.  v.  McPike,  3Cush.  (Mass.) 

111.  438,  43  N.  E.  Rep.  593;  Norfleet  181,  184;  States.  Horan,  32  Minn.  394, 

v.  Com.   (Ky.,  1896),  33   S.  W.  Rep.  396;  Driscoll  v.  People,  47  Mich.  413, 

938;  State  v.  Bigelow  (Iowa,  1897),  70  415,  416,  and  Underbill  on  Ev.,  p.  75. 
N.  W.  Rep.  600;  Jones  v.   State,   71        2  "Declarations,   to  be   admissible, 

Ind.  66,  81,  82;  Crookham  r.  State,  5  must  be   contemporaneous   with   the 

W.  Va.  510,  513;  State  v.  Walker,  77  main  fact  or  transaction,  but  it  is  im- 

Me.  488,  491  ;  United  States  v.  Noelke,  practicable  to  fix,  by  any  general  rule, 

17  Blatchf .  554,  570 ;  Garber  v.  State,  4  any  exact  instant  of  time,  so  as  to  pre- 

Coldw.  161,  lfi9;  Scblemmer  v.  State,  elude  debate  or  conflict  of  opinion  in 

51   N.  J.  L.  23,29;  United   States  v.  regard  to  this  particular  point."  Lund 

Angell,  11  Fed.  Rep.  34,  41 ;  Lewis  v.  v.  Inhabitants,  9  Cush.  36,  43. 


120  CRIMINAL  EVIDENCE.  §  96 

tion,  "A.  stabbed  me,"  made  a  few  seconds  afterwards,  while 
pursuing  his  assailant,  would  be  rejected.1 

It  is  absolutely  impossible  to  lay  down  any  rule  which  will 
be  applicable  in  criminal  cases  generally  to  determine  whether 
a  declaration  is  or  is  not  a  part  of  the  res  gestae.  Some  crimes, 
such  as  murder  and  rape,  often  consist  of  a  single  isolated  act 
on  the  part  of  the  active  participant,  occupying  but  a  very 
small  portion  of  time  from  its  inception  to  its  consummation; 
while  others,  as  a  conspiracy  to  defraud  or  to  obtain  money  by 
false  pretenses,  consist  of  a  series  of  connected  facts,  spread 
over  a  considerable  portion  of  time,  some  of  which  may  be  in- 
nocent in  themselves,  but  all  of  which  lead  up  to,  and  termi- 
nate in,  the  criminal  transaction  which  is  the  principal  fact. 

Again,  it  is  now  the  universal  practice  to  permit  certain  ac- 
tions of  the  accused  after  the  commission  of  the  crime  to  be 
proved  as  relevant  to  show  that  he  committed  it.  Thus  it  may 
be  shown  that  he  attempted  to  escape,  that  he  destroyed  evi- 
dence or  endeavored  to  fabricate  evidence.  Such  facts  may, 
with  correctness,  be  assumed  to  form  a  part  of  the  res  gestas, 
though  not  contemporaneous  with  the  principal  transaction. 
If  this  is  so,  there  can  be  no  impropriety  in  receiving  the  dec- 
larations accompanying  them.2  Nor  is  the  period  intervening 
between  the  criminal  transaction  and  the  subsidiary  act  mate- 
rial if  they  are  connected.  An  interval  of  a  day  will  lmt 
exclude  the  subsidiary  act  with  its  accompanying  declara- 
tion.3 On  the  whole,  the  res  gestae  can  not  be  arbitrarily  con- 
fined within  any  limits  of  time.  The  element  of  time  is 
not  always  material.  If  the  declarations  are  narrative  and  de- 
scriptive in  their  form  and  character,  if  they  are  not  the  im- 
promptu outpourings  of  the  mind,  they  should  be  rejected, 
though  uttered  only  a  few  minutes  after  the  main  transaction.4 

1  Reg.  v.  Bedingfield,  14  Cox  C.  C.  also,  a  part  thereof,  and  declarations 
341,  342;  People  v.  O'Brien,  92  Mich,  accompanying  acts  preceding  the  tak- 
17,  19.  ing  may  be  proven.     State  v.  Gabriel, 

2  The  res  gestce  of  larceny  is  not  re-  88  Mo.  631,  639. 

stricted  to  the  limited  time  when  the  3  Carroll  v.  State,  3  Humph.  (Tenn.) 

hand  reaches  out  and  grasps  the  stolen  315 ;  Cornwell  v.  State,  M.  &  Y.(Tenn.) 

property.     The  intention,  and  all  con-  147. 

duct  by  which  it  may  be  shown,  form,  4  People  v.  Ah  Lee,  60  Cal.  85,  91 ; 


§  97    DBCLA RATIONS   WHICH    ARE  A  PART  OF  THE  RES  GESTAE.      121 

§  07.  Interval  for  consideration  or  taking  advice. — The  spon- 
taneous, unpremeditated  character  of  the  declarations  and  the 
fact  that  they  seem  to  be  the  natural  and  necessary  concomitants 
of  some  relevant  transaction  in  which  their  author  was  a  par- 
ticipant, constitute  the  basis  for  their  admission  as  evidence.1 
If  a  sufficient  period  has  intervened  between  the  act  and  the 
statement  for  consideration,  preparation  or  taking  advice,  the 
statement  may  be  rejected.  The  mere  likelihood  or  probability 
that  the  statement  was  the  result  of  advice  or  consideration 
may  exclude  it.  Actual  preparation  need  not  be  shown.  Dec- 
larations made  immediately  after  the  principal  transaction 
have  been  received  in  homicide  cases.2  And  the  American 
cases,  as  a  rule,  do  not  sustain  the  strict  English  doctrine  that 
the  declarations,  to  be  admissible,  must  be  strictly  contempo- 
raneous with  the  main  transaction,  if  the  declarations  are  illus- 
trative verbal  acts  and  not  mere  narratives  of  what  has  passed.3 


State  v.  Raven,  115  Mo.  419,  422 ;  State 
v.  Daugherty,  17  Nev.  376,  379 ;  Jones 
v.  State,  71  Ind.  66,  81 ;  Hall  v.  State, 
132  Ind.  317,  321,  322;  Stephenson  v. 
State,  110  Ind.  358;  Parker  v.  State, 
136  Ind.  284,  290;  State  v.  Carey,  56 
Kan.  84;  Turner  v.  State,  89  Tenn. 
547,  559,  15  S.  W.  Rep.  838;  Hall  v. 
State,  48  Ga.  607,  608 ;  State  v.  Carl- 
ton, 48  Vt.  636,  643  (two  minutes  after 
main  act)  ;  State  v.  Pomeroy,  25  Kan. 
349  (three  to  five  minutes  afterwards). 
1  Mayes  v.  State,  64  Miss.  329,  333. 
"  The  principle  of  admission  is,  that 
the  declarations  are  pars  rei  gestce,  and 
therefore  it  has  been  contended  that 
they  must  be  contemporaneous  with 
it ;  but  this  has  been  decided  not 
to  be  necessary,  on  good  grounds ;  for 
the  nature  and  strength  of  the  con- 
nection are  the  material  things  to  be 
looked  to,  and,  although  concurrence 
of  time  can  not  but  be  always  material 
evidence  to  show  the  connection,  yet 
it  is  by  no  means  essential."  Rouch 
v.  Great  West.  R.  R.  Co.,  1  Q.  B.  51, 60, 


cited  and  approved  in  Hunter  v.  State, 
40  N.  J.  L.  496,539. 

2  Lambert  ».  People,  29  Mich.  71; 
Driscoll  v.  People,  47  Mich.  413,  415. 
In  Com.  v.  McPike,  3  Cush.  181,  184, 
a  declaration  by  the  victim  of  a  homi- 
cide made  after  she  had  left  the  room 
where  she  was  assaulted,  and  had 
gone  up  stairs,  was  received. 

8  State  v.  Punshon,  133  Mo.  44,  34 
S.  W.  Rep.  25;  Chalk  v.  State  (Tex., 
1896),  32  S.  W.  Rep.  534;  Moran  v. 
People  (111.,  1897),  45  N.  E.  Rep.  230; 
Horan  v.  State,  32  Minn.  394,  395  (a 
few  minutes)  ;  Smith  v.  State,  21  Tex. 
App.  277,  305  (15  minutes  after) ; 
Com.  v.  Hacket,  2  Allen  136 ;  Lovett 
v.  State,  80  Ga.  255,  4  S.  E.  Rep.  912; 
United  States  v.  Noelke,  17  Blatchf. 
554,570;  United  States  v.  Angell,  11 
Fed.  Rep.  34,  41;  Evans  v.  State,  58 
Ark.  47,  22  S.  W.  Rep.  1026;  State  v. 
Frazier,  1  Houst.  (Del.)  176;  Jones  v. 
State,  71  Ind.  66,  81 ;  State  v.  Walker, 
77  Me.  488,  491.  See,  also,  the  re- 
marks of  the  court   in  Vicksburg  & 


122  CRIMINAL  EVIDENCE.  §  98 

§  98.  Mental  and  physical  conditions  as  influencing  declara- 
tions.— Many  crimes  involve  scenes  and  actions  which,  by 
their  exciting  character,  engross  the  mind  and  stir  it  deeply. 
The  period  within  which  a  declaration  may  be  uttered  and  yet 
be  admissible  can,  to  some  extent,  be  measured  by  the  charac- 
ter of  the  passions  and  emotions  which  exist  in  the  breast  of 
the  speaker. 

If  the  declarant  is  implicated,  either  as  agent  or  patient,  in 
a  murderous  assault,  the  fear,  hatred,  rage  or  other  passion 
which  customarily  accompanies  a  homicide,  or  attempted  hom- 
icide, and  engrosses  the  minds  of  all  participants,  may,  with 
reason,  be  considered  to  prolong  the  period  during  which  lan- 
guage may  be  presumed  to  be  spontaneous.  The  presence  of 
these  passions  is  not  conducive  to  the  mental  calmness  and  de- 
liberation necessary  to  concoct  an  untrue  and  narrative  decla- 
ration. On  the  other  hand  the  mental  distraction  which  is  the 
result  of  a  mortal  wound,  the  pain  and  physical  anguish  of  the 
sufferer,  the  danger  of  death  and  the  urgent  need  for  procuring 
speedy  relief  or  aid  would  be  very  likely  to  prevent  the  lan- 
guage of  the  victim  from  assuming  a  narrative  and  retrospec- 
tive character. 

The  imperative  present  needs  of  the  body,  filling  the  mind 
with  apprehension  and  fear,  certainly  preclude  much  mental 
consideration  of  past  events,  or  mental  preparation  or  inten- 
tion to  narrate  them  ;  and  tend  to  make  all  language  used  the 
reflection  of  the  existing  mental  condition.1 


Meridian  R.  Co.  v.  O'Brien,  119  U.  S.  shown  in  evidence  whenever  the  act 
99,  105,  106.  A  witness  may  state  is  shown.  In  this  way  a  defendant 
that  he  gave  an  alarm  after  a  burg-  may  even  be  entitled  to  introduce  in 
lary,  and  what  he  said  in  connection  his  own  behalf  accompanying  dec- 
with  and  while  giving  it  is  clearly  a  larations  not  otherwise  admissible, 
part  of  the  res  gestoe.  State  v.  Moore,  Statements,  from  whatever  source,  to 
117  Mo.  395,  401.  Contra,  People  v.  be  thus  competent,  must  be  contem- 
Ah  Lee,  60  Cal.  85,  87,  91.  poraneous  with  the  act  they  would 
1  "  In  genera],  subject  to  some  appa-  illustrate.  Perhaps  a  few  of  the  cases 
rent  or  real  qualifications,  what  one  require  them  to  be  so  in  the  strict 
said  in  its  nature  explanatory,  while  sense.  But  it  is  at  least  better  doc- 
performing  an  admissible  act,  whether  trine  that  they  are  competent,  when- 
he  is  a  party  or  a  third  person,  may  be  ever  near  enough  the  act,  either  before 


§  99    DECLARATIONS  WHICH  ARE  A   PART  OF  THE   RES  (iEST.E.      123 

The  mind  even  when  thus  aroused  is  still  open  to  new  influ- 
ences and  impressions.  If  such,  therefore,  intervene,  the  ele- 
ment of  mental  perturbation  is  eliminated,  and  the  door  is 
opened  for  new  motives  which  may  suggest  or  influence  dec- 
larations subsequently  made.  But  where  the  original  impulse 
is  continued,  so  that  on  all  the  circumstances  it  does  not  appear 
that  the  opportunity  for  deliberation,  if  any,  has  caused  the  dec- 
laration to  be  contrived  or  devised  to  execute  a  new  intention 
not  growing  out  of  the  original  motive,  the  declarations  are  ad- 
missible. 

§  99.  Admissibility  for  the  accused — Relevancy. — The  rule 
of  the  res  gestse  is  based  upon  the  principle  that  when  one  part 
of  a  transaction  is  shown  by  one  party,  the  other  may  bring 
out  all  or  any  part  of  the  remainder.1  Hence,  the  whole  dec- 
laration or  conversation  must  be  stated  and  admitted.2  If  the 
declaration  was  made  by  the  accused  in  answer  to  assertions, 
questions  or  taunting  remarks  by  the  victim  of  a  homicide, 
the  latter  are  competent  to  explain  the  declaration  or  modify 
its  force  and  meaning  by  showing  the  true  motives  which 
prompted  it.  And  it  is  a  general  rule  that  whenever  the 
prosecution  shall  introduce  any  declarations  of  the  accused, 
under  the  rule  of  the  res  gestse,  he  may  offer  other  declarations 
forming  a  part  of  the  same  conversation  and  explanatory 
thereof,  though  they  might  not  have  been  competent  coming 
from  him  in  the  first  instance.3 

§  100.    Declarations   uttered   prior  to   the   crime. — If    the 

declaration  meets  the  requirements  of  the  rule  now  under  con- 
sideration, that  is,  if  it  explains  or  illustrates  a  relevant  fact, 
it  is  not  incompetent,  merely  because  its  utterance  precedes  the 
actual  commission  of  the  crime.  Evidence  is  always  relevant 
which  shows  that  the  accused  made  preparations  to  commit  a 

or  after,  to  be  prompted  by  the  same  People  v.  Potter,  5  Mich.  1,  5;  Liles 

motive,  and  apparently  to  constitute  a  v.  State,  30  Ala.  24,  26. 

part  of  it."     1  Bishop  Cr.  Pro.,  §  1086.  3  Shrivers  v.  State,  7  Tex.  App.  450, 

1 1  Bishop's  Grim.  Pro.,  §§  1085-6.  455. 

*McKee  v.  People,   36  N.  Y.  113; 


124  CRIMINAL  EVIDENCE.  §  101 

crime,  and  from  such  preparative  actions  a  criminal  intention 
may,  with  justice,  be  inferred. 

Declarations  accompanying  these  acts  of  preparation  are 
received  to  explain  and  unfold  their  significance,  and,  indi- 
rectly, to  illuminate  the  subsequent  language,  conduct  and  state 
of  mind  of  the  accused.1  Thus,  where  one  of  two  travelers 
killed  the  other  while  en  route,  the  court  admitted  the  state- 
ments of  the  deceased,  showing  whence  they  came  and  whither 
they  were  going,  as  a  part  of  the  res  gestse  leading  up  to  the 
crime.2 

The  declarations,  if  of  the  res  gestse,  may  be  offered  by  the 
accused  in  his  own  behalf  to  illustrate  or  to  show  his  motives, 
or  to  rebut  an  inference  of  a  criminal  intention;3  and  before 
any  part  of  the  declaration  is  offered  against  him,  if  the  action 
to  be  explained  is  clearly  relevant  and  is  already  in  evidence. 

The  subsidiary  or  preparative  act  to  be  explained  must  be 
relevant  to  the  guilt  of  the  accused.  Otherwise,  no  mere 
suggestion  or  probability  that  the  declaration  will  throw  light 
upon  the  crime,  will  avail  to  let  it  in,  if  the  accompanying 
action  is  not  relevant.4  If  the  relevant  act  is  in  evidence,  the 
accused  need  not  wait  to  prove  a  declaration  in  his  own  favor, 
until  another  declaration  is  introduced  against  him.  He  may 
prove  the  declaration  at  once.5 

§  101.  Declarations  by  bystanders  and  third  persons. — The 

oral  or  written  declarations  of  persons  other  than  the  accused 

1  Price  v.  State  (Ala.,  1895),  18  So.  State,  5  Ga.  85;  Foster  v.  State,  8  Tex. 

Rep.  130 ;  State  v.  Peffers,  80  Iowa  580 ;  App.  248. 

Coxv.  State,  64  Ga.  374,  410;  Schnick-  4  People  v.  Williams,  3  Parker  Cr. 

er  ^.People,  88  N.  Y.  192,  195 ;  Carr  v.  Rep.  84 ;  Griffith  v.  State,  90  Ala.  583, 

State,  43  Ark.  99,  104;    Com.  v.  Cas-  589;  Brumley  v.  State,  21  Tex.  App. 

ties,  9  Gray  (Mass.)  121 ;  Cluverius  v.  222,  239. 

Com.,  81  Va.  787;  Wood  o.  State,  92  5  Foster  v.  State,  8  Tex.  App.  248; 

Ind.  269,  272;  People  v.  Scott  (N.  Y.,  Thomas    v.   State,   27    Ga.    287,   297; 

1897),  46  N.  E.  Rep.  1028.  State  v.  Abbott.   8  W.  Va.  741,   754, 

2 State  v.  Viacent,  24  Iowa  570,  573,  and  cases  in  note  1, p.  124;  Morrows. 

574.  State,  48  Ind.  432,  435 ;  Mack  v.  State, 

8  State  v.  Walker,  77  Me.  488,  490;  48  Wis.  271,  278,  280;  Schlemmer  v. 

Dukes  v.  State,  11  Ind.  557,564;  State  State,  51  N.  J.  L.  23,  29-31.     Contra, 

v.  Daley,  53  Vt.  442,  445;  Monroe  v.  State  v.  Hicks,  92  Mo.  431,  437. 


§   101    DECLARATIONS  WHICH  ARE  A  PART  OF  THE  RES  GEST/E.     125 

or  the  passive  participant  in  the  crime,  if  they  possess  the  char- 
acter of  declarations  forming  a  part  of  the  res  gestae,  are  receiv- 
able. If  the  act  of  a  third  party  is  relevant  and  is  in  evidence, 
his  statement  accompanying  and  explanatory  of  it,  which  is 
the  natural  concomitant  of  the  act,  and  is  prompted  by 
the  identical  motive,  should  be  admitted.1  But  if  the  declara- 
tions of  a  third  person  are  merely  narrative  and  unconnected 
with  a  relevant  act,  so  that  by  no  proper  extension  of  the  rule 
can  they  be  included  among  the  res  gestse,  they  will,  with 
some  few  exceptions,  be  rejected  as  hearsay,2  though  the  dec- 
laration is  in  form  a  confession  that  the  declarant  committed 
the  crime.3 

The  exclamations  of  persons  who  were  present  at  a  fracas  in 
which  a  homicide  occurred,  showing  the  means  and  mode  of 
killing,  are  admissible  for4  or  against  the  accused,5  because  of 
their  unpremeditated  character  and  their  connection  with  the 
event  by  which  the  attention  of  the  speaker  was  engrossed. 
Presence  alone  is  not  enough.  The  declarant,  whose  language 
is  offered  as  evidence,  must  have  been  more  than  a  mere  ob- 
server or  bystander  at  the  occurrence  he  describes.     It  must 

1  Hunter  v.  State,  40  N.  J.  L.  495,  4  Flaneganv.  State,  64  Ga.  52.  Where 
535-540;  States.  Gabriel,  88  Mo.  631,  a  homicide  occurred  in  the  dark,  a 
639.  declaration  made  by  a  bystander  dur- 

2  State  v.  Beaudet,  53  Conn.  536;  ing  the  affray  that  he  had  cut  the  ac- 
State  v.  Davis,  77  N.  Car.  483;  State  cused  in  the  back  is  relevant  for  the 
v.  Badger  (Vt.,  1897),  37  Atl.  Rep.  293.  latter  where  it  appears  that  he  was 
Nor  can  the  state  prove  threats  to  not  cut  in  the  back,  but  that  the  de- 
lynch  defendant,  made  by  a  crowd  to  ceased  had  received  several  appar- 
show  the  community  believe  him  ently  mortal  wounds  in  his  back, 
guilty.     State  v.  Sneed,  88  Mo.  138,  Flanegan  v.  State,  64  Ga.  52,  56. 

141,  147.  5Appleton  v.  State,  61  Ark.  590,  33 

3  West  v.  State,  76  Ala.  98,  99.  But  S.  W.  Rep.  1066;  State  v.  Biggerstaff, 
narrative  statements  by  third  persons,  17  Mont.  510,  43  Pac.  Rep.  709;  State 
assented  to  or  acquiesced  in  by  the  ac-  v.  Duncan,  116  Mo.  288,  22  S.  W.  Rep. 
cused  on  his  hearing  them  are  gener-  699.  The  exclamation,  "  Don't  strike 
ally  received  as  his  own  admissions  him,  for  you  have  shot  him,"  by  a 
or  confessions,  being  made  so  by  his  participant,  addressed  to  the  accused, 
adoption.  See  post,  §§122-124,  and  was  received  against  him  in  Walker  v. 
Underhill  on  Ev.,  Chap.  IV.  State,  78  Mo.  380,  386,  387. 


126 


CRIMINAL    EVIDENCE. 


§101 


not  only  appear  that  he  was  present,  but  that  he  was  an  act- 
ive participant,  either  by  word  or  act,  in  the  event.1 


lWhart.  Cr.  Ev.,  §262;  Roscoe's 
Cr.  Ev.,  §23;  1  Bish.  Cr.  Pro.,  §  1087; 
Bratlshaw  v.  Com.,  10  Bush.  (Ky.) 
576,  578;  State  v.  Moore,  38  La.  An. 
66 ;  State  v.  Riley,  42  La.  An.  995, 997 ; 
Flynn  v.  State,  43  Ark.  289,  292,  293. 
Thus,  where  the  defendant  had  given 
evidence  that  he  had  been  assaulted 
by  a  mob  led  by  deceased,    he  was 


permitted  to  show  that  some  unknown 
person  in  the  crowd  exclaimed  "  Kill 
him!  Kill  him!"  meaning  the  de- 
fendant. Morton  v.  State,  91  Tenn. 
437.  The  fact  that  the  declarant  was 
a  participant  must  be  shown  by  in- 
dependent evidence.  It  can  not  be 
proved  by  the  declaration  itself. 
Flynn  v.  State,  43  Ark.  289,  293. 


CHAPTER  X. 


DYING    DECLARATIONS. 


§102. 
103. 


104. 


105. 


106. 


107. 


Definition — Religious  element. 

Consciousness  of  nearness  of 
death  as  shown  by  the  de- 
clarant's language. 

Sending  for  legal  or  spiritual 
advisers,  nature  of  wounds 
or  other  circumstances  show- 
ing a  consciousness  of  ap- 
proaching death. 

Period  intervening  between 
the  statement  and  the  death. 

Dying  declarations  not  admis- 
sible to  prove  all  crimes. 

Dying  declarations  distin- 
guished from  those  which 
are  a  part  of  the  res  gestae. 


§  108.  Opinions  contained  in  dying 
declarations  are  not  admis- 
sible. 

109.  Must  refer  to  the  res  gestae  of 

the  homicide. 

110.  Mode  of  proof,  credibility,  rele- 

vancy and  weight. 

111.  Declaration    is   admissible  in 

its    entirety — Contradictory 
or  untruthful  character. 

112.  The  form  of  the  declaration. 

113.  Declarations  by  signs — Mental 

condition  of  the  declarant. 

114.  Dying    declarations    made  by 

children. 


§  102.  Definition — Religious  element. — Dying  declarations 
constitute  an  exception  to  the  rule  rejecting  hearsay.  Such 
declarations  are  those  made  by  the  victim  of  a  homicide,  refer- 
ring to  the  material  facts  which  concern  the  cause  and  circum- 
stances of  the  killing,  and  uttered  under  a  fixed  belief  that 
death  is  impending  and  is  certain  to  follow  immediately,  or  in 
a  very  short  time,  without  an  opportunity  for  repentance  and 
in  the  absence  of  all  hopes  of  recovery.1  The  certainty  of  the 
declarant's  belief  that  he  is  in  extremis,  and  that,  in  a  very 
short  time,  those  immortal  and  spiritual  elements  which  in- 
habit the  body  will  forsake  it,  to  encounter  the  dread  possibili- 
ties of  the  unknown  and  supernatural  world  beyond  the  grave, 

^nderhill  on  Ev.,  §  100  ;  1  Greenl.    111.  66,  73;   Starkey  v.  People,  17  111. 
on  Ev.,  §  156;   Simons  v.  People,  150    17. 

(127) 


128 


CRIMINAL    EVIDENCE. 


§   102 


is  deemed  to  furnish  a  sanction  equivalent  to  that  of  a  solemn 
and  positive  oath  administered  in  a  court  of  justice.1 

To  illustrate  or  explain  the  mental  condition  of  the  deceased, 
the  accused  should  be  permitted  to  show  that  his  language  was 
prompted  by  motives  of  revenge  or  malice;  and  that,  when  he 
uttered  the  accusatory  statement,  he  entertained  vindictive 
feelings  and  was  in  a  reckless  and  irreverent  frame  of  mind. 
So  it  may  be  shown,  that  immediately  prior  to  or  after  the  dec- 
laration, the  deceased  had  used  profane  language;2  and  such 
evidence  furnishes  good  grounds  for  the  presumption  that  the 
speaker  does  not  believe  that  he  is  soon  to  die.  The  fear  of 
punishment  for  perjury  in  this  world  is  wholly  absent.  Un- 
less, therefore,  the  dying  man  possesses  and  is  controlled  by  a 
vivid  and  conscieptious  feeling  of  accountability  to  God,  in 
whose  presence  he  expects  soon  to  appear,  it  is  probable  that 
he  may  be  materially  influenced  in  his  utterances  by  the  pas- 
sions of  anger  and  revenge.  Hence,  these  declarations  ought 
to  be  received  with  the  greatest  caution  as  respects  the  primary 
facts  admitting  them.     All  men  are  prone  to  excuse  and  jus- 


lf'The  general  principle  on  which 
this  species  of  evidence  is  admitted  is 
that  they  are  declarations  made  in 
extremity,  when  the  party  is  at  the 
point  of  death,  when  every  hope  of 
this  world  is  gone,  when  every  motive 
to  falsehood  is  silenced ;  and  the  mind 
is  induced  by  the  most  powerful  con- 
siderations to  speak  the  truth.  A  sit- 
uation so  solemn  and  so  awful  is  con- 
sidered as  creating  an  obligation  equal 
to  that  imposed  by  a  positive  oath  ad- 
ministered in  a  court  of  justice." 
Eyre,  J.,  in  Woodcock's  Case,  2  Leach 
C.  Law  563  (1789).  The  earliest  case 
is  Rex  v.  Ely,  in  1720,  12  Viner's  Abr. 
118;  Starkey  v.  People,  17  111.  17; 
Hill  v.  State,  41  Ga.  484,  503.  It 
seems  that  an  instruction  that  dying 
declarations  are  to  receive  as  much 
credit  as  testimony  given  under  oath 
in  open  court  is  erroneous.  State  v. 
Vansant,  80  Mo.  67;  State  v.  Mathes, 


90  Mo.  571,  571;  Lambeth  v.  State,  23 
Miss.  322,  359.  The  absence  of  an  op- 
portunity to  cross-examine  the  de- 
clarant or  for  the  jury  to  observe  his 
demeanor  upon  the  witness  stand,  de- 
tracts from  their  credibility  as  evi- 
dence. People  v.  Kraft,  148  N.  Y.  631, 
43  N.  E.  Rep.  80.  Hence,  if  the  de- 
ceased was  totally  irreligious,  so  that 
he  had  no  apprehension  of  punish- 
ment for  lying  and  no  belief  in  a  state 
of  future  rewards  and  punishments, 
that  fact,  while  not  rendering  his  dec- 
laration inadmissable  (People  v.  San- 
ford,  43  Cal.  29),  is  competent  to  go  to 
the  jury  as  affecting  the  credit  to  be 
given  to  it.  Hill  v.  State,  64  Miss. 
431,432;  People  v.  Chin  Mook  Sow, 
51  Cal.  597,  600;  Goodall  v.  State,! 
Ore.  333,  334;  State  v.  Elliott,  45 
Iowa  486,  487 ;  State  v.  Ah  Lee,  8  Ore. 
214,  218. 
2  Tracy  v.  People,  97  111.  101,  106. 


§  103 


DYINd     DKCLAKATIONS. 


129 


tify  their  own  conduct  and  to  endeavor  to  revenge  themselves 
on  those  who  have  injured  them.  These  proclivities,  however, 
in  the  case  of  dying  declarations,  are  presumed  to  have  heen 
overcome  hy  the  apprehension  of  immediate  death  which  will 
deprive  the  dying  man  of  all  opportunity  for  repentance  and 
subject  him  to  severe  punishment  beyond  the  grave.1 

The  main  ground  for  admitting  dying  declarations  being 
that  the  danger  of  immediate  death  and  the  belief  of  the  de- 
clarant that  he  is  in  extremis  are  regarded  as  equivalent  to  an 
oath,  it  follows  that  every  dying  declaration  will  be  presumed, 
until  the  contrary  appears,  to  be  made  under  a  solemn  and  re- 
ligious sense  of  responsibility  to  a  Deity  who  will  punish  per- 
jury.2 

§  103.  Consciousness  of  nearness  of  death,  as  shown  by  de- 
clarant's language. — The  deceased,  at  the  time  of  the  declara- 
tion, must  have  been  under  a  sense  of  approaching  death 
without  any  hope  of  living.  He  must  believe  that  there  is  no 
possibility  of  his  recovery.3 


People  v.  Sanchez,  24  Cal.  17,  24; 
People  v.  Hodgdon,  55  Cal.  72,  76.  But 
the  fact  that  the  declarant  believes, 
as  a  matter  of  religious  opinion,  that 
he  may  repent  of  his  sins,  lying  in- 
cluded, at  any  moment  before  death, 
does  not  alone  render  his  declaration 
inadmissible.  North  v.  People,  139 
111.  81.  In  a  note  to  People  v.  Chin 
Mook  Sow,  51  Cal.  597,  601,  will  be 
found  a  summary  of  the  religious  be- 
lief of  the  Chinese  as  described  by 
one  of  them  on  the  witness  stand. 

2  Lambeth  v.  State,  23  Miss.  322,  355. 

3  Com.  v.  Bishop,  165  Mass.  148,  42 
N.  E.  Rep.  560 ;  Collins  v.  State,  46 
Neb.  37,  64  N.  W.  Rep.  432;  People  v. 
Kraft,  91  Hun  474;  Com.  v.  Brewer, 
164  Mass.  577,  42  N.  E.  Rep.  92;  Com. 
v.  Mika,  171  Pa.  St.  273,  33  Atl.  Rep. 
65;  White  v.  State  (Ala.,  1897),  21  So. 
Rep.  330;  Jones  v.  State  (Tex.,  1897), 

9— Cr.  Ev. 


38  S.  W.  Rep.  992;  United  States  v. 
Woods,  4  Cranch  C.  C.  484;  Archi- 
bald v.  State,  122  Ind.  122,  123 ;  State 
v.  Faile,  41  S.  Car.  551,  20  S.  E.  Rep. 
798 ;  Ex  parte  Meyers,  33  Tex.  Cr.  204, 
26  S.  W.  Rep.  196;  State  v.  Cronin,  64 
Conn.  293,  305;  State  v.  Wilson,  121 
Mo.  434,  442;  Walston  v.  Com.,  16  B. 
Mon.  (Ky.)  15,  34;  Powers  v.  State, 
87  Ind.  144,  151;  Whitaker  v.  State, 
79  Ga.  87,  91 ;  Mitchell  v.  State,  71  Ga. 
128,  141;  State  v.  Schmidt,  73  Iowa 
469;  State  v.  Daniel,  31  La.  An.  91, 
95;  State  v.  Blackburn,  80  N.  Car. 
474,  478 ;  State  v.  Mathes,  90  Mo.  571 ; 
Peak  v.  State,  50  N.  J.  L.  179,  182; 
Yaughan  v.  Com.,  86  Ky.  431,  435; 
Hammil  v.  State,  90  Ala.  577;  State  v. 
Johnson,  26  S.  Car.  152,  153;  State  v. 
Banister,  35  S.  Car.  290,  296;  Cole  v. 
State,  105  Ala.  76,  16  So.  Rep.  762,  and 
cases  cited  in  Underbill  on  Ev.,  p. 


130 


CRIMINAL    EVIDENCE. 


§  103 


His  mental  condition  in  this  respect  must  be  shown  before 
his  declaration  is  received,  and  if  he  entertained  any  hopes, 
however  slight,  that  his  injury  is  not  mortal,  his  statement 
should  be  rejected.  If,  however,  it  is  shown  that  he  was  con- 
scious of  near  approaching  death,  it  is  immaterial  that  no  one 
had  told  him  that  he  was  about  to  die.1  The  statement  of  the 
accused  tending  to  show  his  knowledge  or  belief  that  he  is 
dying,  and  that  he  entertains  no  hope  of  recovery,  is  always 
admissible.2  It  is  perhaps  the  most  satisfactory  and  convinc- 
ing evidence  of  a  consciousness  of  approaching  death,  but  it  is 
not  the  only  evidence,  nor  is  any  particular  form  of  words  re- 
quired.3 

Thus,  if  the  deceased  states  that  it  is  useless  to  send  for  a  doc- 
tor,4 that  he  is  sure  to  die,5  or  obliged  to  die,6  that  he  can  not  live 
and  wants  to  make  a  dying  declaration,7  that  he  does  not  think,8 
or  expect  that  he  will  recover  from  his  wounds,9  that  he  knows 
that  he  can  not  live,10  that  he  is  killed,11  or  uses  similar  expres- 
sions, it  is  conclusively  presumed  that  he  has  a  full  and  real 
sense  of  approaching  death. 


139.  "An  undoubted  belief  in  the 
mind  of  the  declarant  at  the  time  the 
declarations  are  made,  that  the  finger 
of  death  is  upon  him  is  indispensable." 
People  v.  Sanchez,  24  Cal.  24.  "  If 
there  is  the  least  hope,  no  matter  how 
faint,  the  requisite  certainty  of  belief 
does  not  exist."  Peak  v.  State,  50  N. 
J.  L.  179,  222. 

1  Hammil  v.  State,  90  Ala.  577,  578. 

2  State  v.  Cronin,  64  Conn.  293; 
State  v.Vaughan,  22  Nev.  285,  39  Pac. 
Rep.  733;  Com.  v.  Thompson,  159 
Mass.  56,  59,  33  N.  E.  Rep.  1111. 

3  State  v.  Johnson,  26  S.  Car.  152, 
158;  People  v.  Samario,  84  Cal.  484, 
485 ;  Lester  v.  State,  37  Fla.  382,  20  So. 
Rep.  232;  Fulcher  v.  State,  28  Tex. 
App.  465;  McLean  v.  State,  16  Ala. 
672;  State  v.  Newhouse,  39  La.  An. 
862,  865;  State  v.  Black,  42  La.  An. 
861,  863;  United  States  v.  Heath,  20 
D.  C.  (9  Mackey)  272 ;  State  v.  Gillick, 


7  Iowa 287;  Mockabeew.  Com.,  78  Ky. 
380, 382;  State  v.  Mills,  91  N.  Car.  581, 
594,  State  v.  Dalton  (R.  I.,  1897),  37 
Atl.  Rep.  673. 

4  State  v.  Jones,  47  La.  An.  1524. 

5  State  v.  Aldrich.  50  Kan.  666,  672 ; 
State  v.  Turlington,  102  Mo.  642,  656; 
State  v.  Smith,  48  La.  An.  533 ;  Crump 
v.  Com.  (Ky.,  1893),  20  S.  W.  Rep.  390, 

6  State  v.  Banister,  35  S.  Car.  290, 
295,  296. 

7Pierson  v.  State,  21  Tex.  App.  14. 

8  McQueen  v.  State,  94  Ala.  50,  52, 
10  So.  Rep.  433,  434. 

9  State  v.  Gay,  18  Mont.  51,  44  Pac. 
Rep.  411 ;  State  v.  Nance,  25  S.  Car. 
168,  172. 

10  People  v.  Callaghan,  4  Utah  49. 
"Simons  v.  People,  150  111.  66,  74; 

State  v.  Elkins,  101  Mo.  344,  350 ;  State 
v.  Russell,  13  Mont.  164,  32  Pac.  Rep. 
854,  856;  Luker  v.  Com,  (Ky.,  1887), 
5  S.  W.  Rep.  354. 


§  104  DYING    DECLARATIONS.  131 

But  if  the  declarant,  when  making  his  statement,  merely 
states  that  he  "has  no  hope  at  present,"1  or  says,  "Who 
knows?  perhaps  I  may  get  well,"2  or  expresses  a  hope  that,  in 
case  he  dies,  he  may  meet  a  person  in  heaven,8  or  hopes  that 
the  attending  surgeon  will  do  what  he  can  for  the  sake  of  his 
family,4  or  thinks  he  is  in  great  danger5  and  may  not  recover,6 
his  declarations,  not  having  been  made  in  immediate  appre- 
hension of  death,  are  inadmissible. 

§  104.  Sending  for  legal  or  spiritual  advisers,  nature  of 
wounds  or  other  circumstances  showing  a  consciousness  of  ap- 
proaching death. — The  consciousness  of  approaching  death  may 
be  inferred  from  the  circumstances  surrounding  the  dying 
man.7  He  need  not  state  expressly  that  he  thinks  or  believes 
his  end  is  near,  or  that  he  is  at  peace  with  his  God,8  while  making 
his  statement,  if  the  nature  of  his  wounds,9  and  his  actions 
and  language  are  such  that  the  court  is  reasonably  satisfied 
that  he  realized  that  he  was  about  to  die  and  had  abandoned 
all  hopes  of  recovery.10 

Perhaps  the  most  useful  and  important  circumstance  in  de- 
termining whether  the  consciousness  of  approaching  dissolu- 
tion is  present  in  the  mind  of  the  declarant  is  his  sending  for 
a  spiritual  adviser  that  he  may  receive  religious  consolation  pre- 
paratory to  death.11  If  the  dying  person  was  a  Roman  Catholic, 
evidence  that  he  had  sent  for  a  priest  to  receive  his  confession  and 

1  Reg.  v.  Jenkins,  Law  Rep.  1  C.  C.  8  State  v.  Black,  42  La.  An.  861,  864. 
R.,  187,  191,  L.  J.38MC.82.  9  Hillt?.  Com.,  2  Gratt.(Va.)  594,  595, 

2  Jackson  v.  Com.,   19  Gratt.  (Va.)  605;  Woodcock's  Case,  2  Leach  C,  C. 
656.  563,  567 ;  Dumas  v.  State,  62  Ga.  58,  64. 

'State  v.  Medlicott,  9  Kan.  257,  282,        "Fitzgerald  v.  State,  11   Neb.  577; 

285.  State  v.  Bemmerly,  87  Cal.  117,  118; 

4 Rex  v.  Crockett,  4  C.  &  P.  544.  People  v.  Kraft,  91  Hnn  474,  36  N.  Y. 

5Errington's  Case,  2  Lew  Cr.  Cas.  Supp.  1034;  People  v.  Taylor,  59  Cal. 

148.  640,  646;  Dumas   v.  State,  62   Ga.  58, 

6People  v.  Hodgdon,  55  Cal.  72,  76.  62;    State  v.  Russell,    13  Mont.   164; 

'State  r.  Evans,  124  Mo.  397,  407;  32  Pac.  Rep.  854,  856;  State  v.  Wilson, 

State  v.  Chase,  79  Hun  296,  299;  Les-  24  Kan.  189,  188, 197.   Cf.  Radbourne's 

teru.  State,  37  Fla.  382,  20  So.  Rep.  Case,  2  Leach  C.  Law  512,  520,  521. 
232;  White  v.  State  (Ala.,  1897),  21  So.        u  Hammil  v.  State,  90  Ala.  577,  579, 

Rep.  330.  581. 


132  CRIMINAL  EVIDENCE.  §  105 

from  whom  he  wished  to  receive  extreme  unction  and  absolu- 
tion would,  in  the  absence  of  other  controlling  circumstances, 
be  conclusive  that  he  was  in  apprehension  of  death.1  Other 
elements  may  be  considered.  So  the  actual  character  of  the 
wound  itself,  where  it  is  in  a  vital  part  and  thus  calculated  to 
justify  an  apprehension  of  mortal  danger  in  the  mind  of  the 
wounded  man  ;  the  urgency  expressed  by  him  that  a  surgeon 
should  be  called,2  the  use  of  religious  expressions  by  the  dying 
declarant  looking  to  a  speedy  entrance  into  another  world,  his 
bidding  farewell  to  the  relatives  and  friends  gathered  at  his 
bedside,3  expressing  a  desire  to  execute  a  will  and  sending  an 
urgent  call  for  the  immediate  attendance  of  a  legal  adviser  to 
frame  it,  and  designating  the  minister  to  preach  the  funeral  ser- 
mon,4 are  facts  from  which,  taken  together  or  in  connection 
with  other  evidence,  the  existence  of  a  consciousness  of  near 
approaching  death  maybe  inferred.  But  the  opinion  of  a  wit- 
ness that  the  deceased  did  or  did  not  think  he  would  die  is 
never  admissible.5 

§  105.  Period  intervening  between  the  statement  and  the 
death. — Though  a  statement  was  made  while  the  deceased  was 
hopeful  of  recovery,  it  is  receivable  if  he  subsequently  ratifies 
it  when  all  hope  is  gone.6  On  the  other  hand,  the  fact  that 
he,  after  he  makes  the  statements,  gets  better  so  that  he  is 

Carver  v.  United  States,  164  U.  S.  3People  v.  Bemmerly,  87  Cal.  117, 

694,  17   S.  C.  228;  Rex  v.  Howell,  1  118. 

Den.  C.  C.  1.  4  State  v.  Nelson,  101  Mo.  464,  468; 

2  The  fact  that  the  deceased  sent  for  Digby  v.  People,  113  111.  123,  127. 
a  doctor  may  indicate  an  expectation  5  State  v.  Tilghman,  11  Ired.  (N. 
of  ultimate  recovery.  Matherly  v.  Car.)  513,  551.  One  witness  may 
Com.  (Ky.,  1892),  19  S.  W.  Rep.  977.  testify  to  the  presence  of  an  expecta- 
But  in  State  v.  Evans,  124  Mo.  397,  tion  of  death  and  the  declaration  may 
408,  it  is  said  "The  mere  fact  that  the  be  shown  by  another.  People  v. 
victim,  while  writhing  under  the  tor-  Garcia,  63  Cal.  19,  20;  Austin  v.  Com. 
ments  of  a  murderous  blow,  seeks  re-  (Ky.,  1897),  40  S.  W.  Rep.  905. 
lief  from  anguish  by  sending  for  a  6  Bryant  v.  State  (Tex.,  1896),  33  S. 
physician  is  not  indicative  of  a  hope  "W.  Rep.  978;  State  v.  Evans,  124  Mo. 
of  life,  but  of  a  natural  desire  to  be  397,409;  Snell  v.  State,  29  Tex.  App. 
relieved  of  pain."  Reg.  v.  Howell,  1  236;  Reg.  v.  Steele,  12  Cox.  C.  C.  168; 
Den.  C.  C.  1;  McQueen  v.  State,  103  Mockabee  v.  Com.,  78  Ky.  380;  John- 
Ala.  12;  15  So.  Rep.  824.  son  v.  State,  102  Ala.  1,  16  So.  Rep. 

99,  103;  Small  v.  Com.,  91  Pa.  St.  304. 


§  106  DYING    DECLARATIONS.  133 

encouraged  to  believe  and  to  express  a  hope  that  he  will 
recover,  will  not  exclude  his  statement  actually  made  in 
immediate  expectation  of  death.1  It  is  not  necessary  that  the 
declaration  should  have  been  made  while  the  declarant  was 
actually  drawing  his  last  breath.2 

The  fact  that  a  considerable  period  intervened  between  the 
making  of  the  declaration  and  the  death  of  the  declarant  is 
immaterial,  and  furnishes  no  valid  ground  for  rejecting  the 
declaration  if  it  is  shown  that,  when  it  was  made,  the  speaker 
was  in  fact  fully  impressed  with  the  belief  that  he  would  die 
in  a  short  time.3  Thus,  declarations  made  forty-eight  hours,4 
six  days,5  ten  days,6  eleven  days,7  fifteen  days,8  seventeen  days,9 
seven  weeks10  and  five  months11  before  the  death  of  the  declar- 
ant have  been  received.12 

The  burden  of  proving  the  presence  of  the  sense  of  approach- 
ing death  is  upon  the  prosecution.18 

§  106.    Declarations  not  admissible  to  prove  all  crimes. — 

Declarations  made  in  extremis  are  never  admissible  as  dying 

1  State  v.  Caldwell,  115  N.  Car.  794,  10  Fulcher  v.  State,  28  Tex.  App.  465, 
804;   State  v.  Tilghman,  11  Ired.  (N.     472. 

C.)  Law  513,  552;   State  v.  Reed,  53  "State  v.  Craine  (N.  C,  1897),  27 

Kan.   767,    773;    State  v.  Turlington,  S.  E.  Rep.  72. 

102  Mo.  642,  657 ;  Swisher  v.  Com.,  26  12  State  v.  Crabtree,  111  Mo.  136,  20 

Gratt.  (Va.)  963.  S.  W.  Rep.  7;   Boulden  v.  State,  102 

2  Johnson  v.  State,  102  Ala.  1,  16  Ala.  78,  15  So.  Rep.  341 ;  State  v.  Ban- 
So.  Rep.  99,  103 ;  Com.  v.  Haney,  127  ister,  35  S.  Car.  290,  14  S.  E.  Rep. 
Mass.  455,  457.  678;  State  v.  Daniel,  31   La.  An.  91 

3  State  v.  Reed,  53  Kan.  767,  773.  People   v.   Chase,    79  Hun.  296,   297 

4  Woodcock's  Case,  2  Leach  Cr.  Cas.  Com.  v.  Haney,  127  Mass.  455,  457 
563.  Kehoe  v.  Com.,  85  Pa.  St.  127. 

5  People  v.  Weaver  (Mich.,  1896),  66  ,3  Peak  v.  State,  50  N.  J.  L.  179,  222, 
N.  W.  Rep.  567;  Moore  v.  State  223;  Digby  v.  State,  113  111.  123,  128; 
96  Tenn.  209,  33  S.  W.  Rep.  1046;  Wallace  v.  State,  90  Ga.  117,  15  S. 
Daughdrill  v.  State  (Ala.,  1897),  21  So.  E.  Rep.  700;  Reg.  v.  Jenkins,  L.  R., 
Rep.  378.  1  C.  C.  R.  187,  191.  Lester  v.  State,  37 

6Tinckler's  Case,  1  East  P.  C.  354.  Fla.  382,  20  So.  Rep.  232.     A  state- 

7  Rex?;.   Mosly,   1  Mood.  C.  C.  98,  ment  made  two  or  three  minutes  be- 

101.  fore   death   is   admissible  as  a  dying 

8 State  v.  Blackburn,  80  N.  Car.  474,  declaration,  though  the  deceased  did 

478.  not  say  that  he  was  going  to  die  until 

9  Com.  v.  Cooper,  5  Allen  (Mass.)  he  had  finished  his  declaration.     Peo- 

495;  Com.  v.  Roberts,  108  Mass.  296.  v.  Lee  Sare  Bo,  72  Cal.  623,  625. 


134 


CRIMINAL    EVIDENCE. 


§  10G 


declarations  in  civil  cases,  though  they  may  be  received  upon 
other  grounds  than  their  ante  mortem  character,  as,  for  ex- 
ample, where  they  are  pedigree,  or  where  they  form  a  part  of 
the  res  gestx.1  The  declaration  of  a  deceased  person,  which  is 
offered  in  evidence  as  a  dying  declaration,  is  only  admissible 
as  such  in  case  his  death  is  the  subject  of  an  inquiry  made 
because  of  an  accusation  of  homicide,  and  the  circumstances 
or  cause  of  that  death  are  the  subject-matter  of  the  declaration.2 
The  rule  admitting  dying  declarations  does  not  apply  in 
the  case  of  any  crime,  except  homicide.  And  even  where  a 
crime,  as  for  example,  abortion,  is  by  statute  declared  to  be 
murder,  if  the  woman,  on  whom  it  has  been  committed,  dies, 
dying  declarations  are  inadmissible.  The  accused  is  not 
indicted  for  the  murder  but  for  the  abortion,  and  the  victim's 
death  is  not  a  material  and  constituent  element  of  the  abortion, 
but  affects  the  punishment  alone.3 


1  Daily  v.  N.  Y.,  etc.,  Co.,  32  Conn. 
356 ;  Friedman  v.  Railway  Co.,  7  Phila. 
203;  Marshall  v.  Railroad  Co,  48  111. 
475,  479,  480;  Wilson  v.  Boerem,  15 
John.  (N.  Y.)  286. 

MGreenl.  on  Ev.,  §156;  Rex  v. 
Mead,  2  B.  &  Cr.  605;  People  v.  Fong 
Ah  Sing,  70  Cal.  8,  13;  Montgomery 
v.  State,  80  Ind.  338,  347;  People  v. 
Smith,  104  N.  Y.  491,  505;  People  v. 
Davis,  56  N.  Y.  95,  96;  State  v.  Bald- 
win, 79  Iowa  714,  45  N.  W.  Rep.  297, 
299;  McBride  v.  People,  5  Colo.  App. 
91,  37  Pac.  Rep.  953,  955,  956;  State  v. 
Shelton,  2  Jones  (N.  Car.)  L.  360, 
364;  State  v.  Nelson,  101  Mo.  464; 
Mitchell  v.  Com.  (Ky.,  1892),  14  S.  W. 
Rep.  489.  The  dying  declaration  of 
an  accomplice  in  a  burglary  is  inad- 
missible as  a  dying  declaration  against 
another  accomplice,  as  his  death  is 
not  under  investigaion.  People  v. 
Hall,  94  Cal.  595. 

3  Railings.  Com.,  110  Pa.  St.  100, 103, 
108;  Rex  v.  Hutchison  (1822),  2  B.  & 
C.  608;  People  v.  Davis,  56  N.  Y.  95, 
103,  104 ;  State  v.  Harper,  35  Ohio  St. 


78,  80;  Reg.  v.  Hind,  8  Cox  C.  C.  300, 
301 ;  Wooten  v.  Wilkins,  39  Ga.  223 ; 
Rex  v.  Mead,  2  B.  &  C.  605,  607. 
Contra,  Montgomery  v.  State,  80  Ind. 
338;  3  Crim.  Law  Mag.  523;  State 
v.  Dickenson,  41  Wis.  299.  The  same 
principle  was  held  applicable  where, 
upon  an  indictment  for  robbery,  the 
dying  statement  of  the  person  robbed 
was  offered  to  prove  the  accused 
guilty  of  the  robbery.  Rex  v.  Lloyd, 
4  Car.  &  P.  233.  "  The  rule  that  dy- 
ing declarations  should  point  dis- 
tinctly to  the  cause  of  death,  and  to 
the  circumstances  producing  and  at- 
tending it,  is  one  that  should  not  be 
relaxed.  Declarations  are  uncertain 
evidence,  liable  to  be  misunderstood, 
imperfectly  remembered  and  incor- 
rectly related.  As  to  dying  declara- 
tions there  can  be  no  cross-examina- 
tion. The  condition  of  the  declarant 
is  often  unfavorable  to  clear  recollec- 
tion, and  to  the  giving  of  a  full  and 
complete  account  of  all  the  particu- 
lars which  it  might  be  important  to 
know.     Hence,  all  vague  and  indefi- 


§  107  DYING    DECLARATIONS.  135 

An  exception,  more  apparent  than  real,  is  sometimes  made 
in  the  case  of  the  homicide  of  two  persons  by  one  who  is  on 
trial  for  the  murder  of  one  of  them  only.  If  the  circumstance 
of  the  deaths  are  so  closely  connected  that  they  may  be  re- 
garded as  parts  of  a  single  transaction,  the  dying  declaration  of 
A.  may  be  admitted  on  a  trial  for  the  killing  of  B.  The  cases 
in  which  this  exception  has  prevailed  have  been  homicides  by 
poisoning,  where  the  deaths  were  nearly  simultaneous  in  time 
and  place,  and  where  they  were  produced  by  the  same  means.1 
This  exception  has  not,  however,  received  universal  recogni- 
tion and  should  not  be  pressed  too  far.2  And  the  mere  circum- 
stance that  a  person's  death  occurred  in  a  disturbance  in  which 
the  person  for  whose  homicide  the  prisoner  was  indicted  was 
killed,  is  insufficient  to  admit  his  declaration,  when  it  is  not 
shown  that  the  declarant's  death  was  directly  due  to  the  defend- 
ant's act.3 

§  107.  Dying  declarations  distinguished  from  those  which 
are  a  part  of  the  res  gestae. — It  may  be  of  value  to  distinguish 
clearly  and  somewhat  in  detail  between  declarations,  whether 
of  deceased,  or  living  persons,  which  are  admissible  as  original 
evidence  forming  a  part  of  the  res  gestse  of  the  crime;  and 
those  which  are  wholly  hearsay  and  which  are  received  solely 
because  they  are  dying  declarations.4  In  regard  to  the  former 
it  need  only  be  said  that  they  are  generally  admitted  whatever 
the  crime  charged,  on  account  of  their  unprompted,  natural, 
contemporaneous  and  explanatory  connection  with  the  main 

nite  expressions,  all    language    that  unconscious   in   a  house    which   had 

does  not  distinctly  point  to  the  cause  been   robbed,  her  dying  declarations 

of  death   and   its   attendant  circum-  were  rejected  on  a  trial  for  the  homi- 

stances,  but  requires  to  be  aided  by  cide  of  the  owner  of  tbe  house,  who 

inference  or  supposition  to  establish  was  her  husband,  and  who  was  found 

facts  tending  to  criminate,  should  be  dead  at  the  same  time  on  a  road  three 

held  inadmissible."     State  v.  Center,  hundred  yards  from  the  house.  Brown 

35  Vt.  378,  386.  v.  Com.,  73  Pa.  St.  321,  329. 

1  Rex  o.  Baker,  2  Mood.  &  Rob.  53 ;  2  State  v.  Bohan,  15  Kan.  407. 

State  ».  Terrell,  12  Rich.  (S.  Car.)  321,  s State  v.  Westfall,  49  Iowa  328. 

329;  State  v.  Wilson,  23  La.  An,  558,  4See  Hill's  Case,  2  Gratt.  (Va.)594, 

559.     "Where  the  declarant  was  found  605. 


136  CRIMINAL  EVIDENCE.  §  108 

transaction.1  On  the  other  hand  dying  declarations,  not  neces- 
sarily constituting  any  part  of  the  res  gestse,  but  being  usually 
subsequent  in  time  and  always  narrative  both  in  form  and 
nature,  are  mainly  admitted  that  homicide  may  not  go  unpun- 
ished, where  the  death  of  the  declarant  is  the  subject-matter  of 
a  criminal  trial.2 

In  such  a  case,  if  no  third  person  were  present  at  the  instant 
of  the  homicide  (and  this,  it  is  well-known,  is  very  frequently 
the  case),  it  would  be  impossible  to  procure  direct  evidence 
upon  the  main  fact  in  issue,  as  the  mouth  of  the  accused  is 
closed  by  the  policy  of  our  law  unless  he  shall  see  fit  to  testify 
for  himself.  But  the  fact  that  the  evidence  is  received  from 
the  necessity  of  the  matter  furnishes  no  basis  for  its  exclusion 
where  other  evidence  of  the  cause  and  the  attendant  circum- 
stances of  the  death  is  to  be  had.  This  is  so  even  if  the  other 
proof  is  uncontradicted  or  conclusive.3 

§  108.  Opinions  contained  in  dying  declarations  are  not  ad- 
missible.— The  declarations  should  not  contain  matter  which 
would  be  excluded  if  the  declarant  were  a  witness.4  He  is  be- 
yond the  reach  of  cross-examination  to  ascertain  the  grounds 
upon  which  his  opinion  may  be  based,  and  other  reasons  may 
exist  which  would  exclude  his  opinion  if  he  were  a  living  wit- 
ness. 

Opinions  in  dying  declarations  are  inadmissible.  It  is  in- 
dispensable that  the  dying  declaration  should  consist  solely  of 
facts,  and  not  of  conclusions,  mental  impressions  or  opinions.5 

1  See  ante,  §  94,  et  seq.  C.  C.  115  ;  People  v.  Shaw,  63  N.  Y.  36 ; 

2  State  v.  Wood,  53  Vt.  560,  564;  State  v.  Mace,  118  N.  Car.  1244,  24 
Com.  v.  Casey,  11  Cush.  (Mass.)  417,  S.  E.  Rep.  798;  Mose  v.  State,  35  Ala. 
421 .  421 ;  State  v.  Williams,  67  N.  Car.  12 ; 

3  Reynolds  v.  State,  68  Ala.  502;  State  v.  Elkins,  101  Mo.  344,  351 ;  State 
Peoples.  Beverly  (Mich.,  1896),  66  N.  v.  Black,  42  La.  An.  861;  Moeck  v. 
W.  Rep.  379.  People,  100  111.  242,  245;  Matherly  v. 

4  State  v.  Black,  42  La.  An.  861;  Com.  (Ky.,  1892),  19  S.  W.  Rep.  977, 
Johnson  v.  State,  17  Ala.  618 ;  McBride  978 ;  Berry  v.  State  (Tex.,  1897),  38  S. 
v.  People,  5  Colo.  App.  91,  37  Pac.  W.  Rep.  1038.  An  objection  to  the 
Rep.  953;  People  v.  Olmstead,  30  declaration  because  containing  opin- 
Mich.  431;  People  v.  Taylor,  59  Cal.  ions  must  be  promptly  made.  State 
640,  645.  v.  O'Brien,  81  Iowa  88. 

5  United  States  v.  Veitch,  1  Cranch 


§  109  DYING    DECLARATIONS.  137 

Thus,  a  statement  that  the  deceased  thought  or  believed1  the 
accused  had  shot  him,  or  that  he  expected  the  accused  would 
try  to  kill  him,2  is  inadmissible  where  the  deceased  did  not  see 
his  assailant  but  based  his  declaration  wholly  upon  threats 
which  had  been  made  by  the  accused.  But  opinions  in  dying 
declarations  are  admissible  whenever  they  would  be  received, 
if  the  declarant  were  himself  a  witness.3  And  a  statement  that 
the  killing  was  intentional,4  or  without  reason  or  provocation,5 
is  not  such  an  expression  of  an  opinion  as  will  exclude  a  dying 
declaration. 

§  109.    Must  refer  to  the  res  gestae  of  the  homicide. — The 

declaration  is  admissible  only  so  far  as  it  points  directly  to  the 
facts  constituting  the  res  gestse  of  the  homicide  ;  that  is  to  say, 
to  the  act  of  killing  and  to  the  circumstances  immediately  at- 
tendant.6 A  dying  statement  showing  why  the  deceased  went 
to  the  place  wrhere  the  homicide  was  committed,  or  that,  after 
the  crime,  he  stated  to  a  bystander  that  he  was  unarmed,7  or 
stating  actions  prior  to  the  circumstances  directly  involved  in 
the  homicide  as  the  possible  motive  for  it,  is  not  admissible.8 
Thus  a  statement  that  enmity  always  existed  betwreen  the  pris- 
oner and  the  declarant,9  or  that  they  had  always  been  friends,10 
or  describing  previous  altercations  between  them,"  or  detailing 
threats  made  by  the  accused  long  prior  to  the  crime,12  has  been 

1  Warren  v.  State,  9  Tex.  App.  619,  Eep.  397;  Johnson  v.  State,  17  Ala. 
35  Am.  Rep.  745;  Whitley  v.  State,  38  618;  State  v.  Johnson,  26  S.  Car.  152, 
Ga.  50 ;  People  v.  Wasson,  65  Cal.  538,     153. 

539.  7  State  v.  Eddon,  8  Wash.  St.  292, 36 

2  People  v.  Shaw,  63  N.  Y.  36,  38.  Pac.  Rep.  139. 

3  Brotherton  v.  People,  75  N.  Y.  159,  8  People  v.  Fong  Ah  Sing,  64  Cal. 
165;  Montgomery  v.  State,  80  Ind.  253;  Lieber  v.  Com.,  9  Bush  (Ky.)  11. 
338,  346 ;  Boyle  v.  State,  105  Ind.  469,  9  Mose  v.  State,  35  Ala.  421. 

472;   Hail  v.  State,   132  Ind.  317,  323;  10  Starr  v.  Com.,  97  Ky.  193,  30  S.W. 

State  v.  Foot  You,  24  Ore.  61,  33  Pac.  Rep.  397,  398. 

Rep.    537.     See,   also,   Underhill    on  "  State  v.  Shelton,  2  Jones  (N.  C.) 

Evidence,  §  186.  360. 

4  State  v.  Nettlebush,  20  Iowa  257.  1Z North  v.  People,  139  111.  81,  28  N. 

5  State  v.  Black,  42  La.  An.  861;  E.  Rep.  966;  State  v.  Wood,  53  Vt. 
Powers  v.  State  (Miss.,  1897),  21  So.  560;  State  v.  Draper,  65  Mo.  335,  241; 
Rep.  657 ;  Wroe  v.  State,  20  Ohio  St.  Merrill  v.  State,  58  Miss.  65, 67 ;  Hack- 
460.  ett  v.  People,  54  Barb.  (N.  Y.)  370. 

6  Starr  v.  Com.,  97  Ky.  193,  30  S.  W. 


138 


CRIMINAL    EVIDENCE. 


§  no 


rejected.  But  a  dying  declaration  describing  threats  is  admis- 
sible if  the  threats  are  a  part  of  the  res  gestse,1  and  generally  the 
fact  that  a  declaration,  written  or  oral,  is  partly  inadmissible 
does  not  exclude  the  whole  of  it  if  the  part  which  is  inadmissi- 
ble can  be  separated  from  that  which  is  not. 

§  110.    Mode  of  proof — Credibility,  relevancy  and  weight. — 

The  determination  whether  a  statement  should  be  received  as  a 
dying  declaration  is  for  the  court  upon  all  the  facts.2  Unless 
the  court  is  firmly  convinced  that  it  was  made  in  actual  expec- 
tation of  immediate  death  it  should  not  be  received.  To  avoid 
creating  prejudice  against  the  accused  in  the  minds  of  the 
jurors,  it  is  advisable,  as  a  matter  of  practice,  to  take  the  pre- 
liminary proof  out  of  their  presence  and  hearing,3  though  evi- 
dence may  be  received  in  the  presence  of  the  jurors,  they  being 
instructed  that  it  must  be  dismissed  from  their  consideration  if 
the  dying  declaration  is  rejected.4 

After  the  declaration  is  admitted,  its  credibility  and  weight 
are  wholly  for  the  jury,5  and  these  elements  are  to  be  deter- 
mined by  the  same  rules  that  are  employed  in  judging  the 
evidence  of  a  living  witness.6 

The  dying  declaration  may  be  introduced  not  only  as  evi- 
dence against  the  accused,  but  in   his   favor  as   well,7  though 


1  State  v.  Wood,  53  Vt.  560,  565. 

2  State  v.  Baldwin,  79  Iowa  714,  45 
N.  W.  Rep.  297,  299;  People  v.  Kraft, 
148  N.  Y.  631,  43  N.  E.  Rep.  80;  Whit- 
aker  v.  State,  79  Ga.  87,  92 ;  Kehoe  v. 
Com.,  85  Pa.  St.  127;  Evans  v.  State, 
58  Ark.  47,  22  S.  W.  Rep.  1026,  1027. 

3  Doles  v.  State,  97  Ind.  555,  559; 
State  v.  Furney,  41  Kan.  115;  Swisher 
v.  Com.,  26  Gratt.  (Va.)  963. 

4  Price  v.  State,  72  Ga.  441,  555 ;  Peo- 
ple v.  Smith,  104  N.  Y.  491,  493,  498; 
Johnson  v.  State,  47  Ala.  9;  Doles  v. 
State,  97  Ind.  555,  559,  560. 

5  Lambeth  v.  State,  23  Miss.  322, 329 ; 
State  v.  McCanon,  51  Mo.  160;  Wals- 
ton  v.  Com.,  16  B.  Mon.  15,  35;  Doles 


v.  State,  97  Ind.  555,  562 ;  McQueen  v. 
State,  94  Ala.  50,  10  So.  Rep.  433; 
Evans  v.  State,  58  Ark.  47,  55. 

6  Justice  v.  State,  99  Ala.  180,  182; 
Jones  v.  State,  70  Miss.  401,  404, 12  So. 
Rep.  444.  Indeed,  it  has  been  held 
that  the  jury  may  also  consider 
whether,  as  a  matter  of  fact,  the  de- 
ceased was  in  extremis,  and  had  lost 
all  hopes  of  recovery.  State  v.  Ban- 
ister, 35  S.  Car.  290,  296,  14  S.  E.  Rep. 
678;  Com.  v.  Brewer,  164  Mass.  577. 

7  In  Brock  v.  Com.,  92  Ky.  183,  186, 
where  it  appeared  that  deceased  was 
drawing  a  pistol  when  killed,  his  dy- 
ing statement  that  he  had  brought  on 
the  quarrel  and  was  wholly  to  blame, 


§  111  DYING    DECLARATIONS.  139 

declarations  of  the  deceased  that  he  did  not  believe  that  the 
accused  meant  to  kill  him,1  and  that  he  did  not  want  him 
prosecuted  for  the  homicide  have  been  rejected,2  as  being  evi- 
dence of  no  fact  except  that  he  possessed  a  Christian  spirit  and 
was  ready  to  forgive  his  slayer. 

In  conclusion,  it  may  be  said  that  a  witness,  called  to  prove 
a  dying  declaration,  is  not  expected  to  repeat  the  exact  lan- 
guage used,  provided  he  can  give  the  substance  of  what  he 
heard  in  a  connected  and  complete  form.3 

§  111.  Declaration  admissible  in  its  entirety — Contradictory 
or  untruthful  character. — A  part  of  the  declaration  which  is 
inadmissible  may  be  stricken  out  on  motion,4  but  generally, 
all  the  deceased  has  said  relevant  to  the  guilt  of  the  accused 
and  bearing  upon  the  facts  of  the  homicide  should  be  admitted, 
and  it  is  erroneous  for  the  court  to  reject  it.5  So,  whatever 
was  said  by  third  parties  to  the  deceased,  if  it  forms  a  part  of 
the  conversation  containing  the  declaration,  should  not  be  re- 
jected. The  accused  has  the  right  to  prove  whatever  was  said, 
explaining,  limiting  or  qualifying  the  declaration,  or  which 
will  rebut  the  inference  of  his  guilt  which  may  be  drawn  there- 
from. But  he  can  not  be  permitted  to  prove  statements  which, 
while  made  during  the  conversation,  are  not  connected  with 
the  declaration,  but  are  distinct  and  independent  in  their  char- 
acter.6 The  admission  of  dying  declarations  does  not  violate  a 
constitutional  provision  that  the  accused  shall  be  confronted 
with  the  witnesses  against  him,  and  shall  have  an  opportunity 
to  hear  their  evidence.7   The  contradictory,  fragmentary  or  in- 

was  received  in  the  defendant's  favor.  321;  Archibald  v.  State,  122  Ind.  122, 

See,  also,  Felder  v.  State,  23  Tex.  App.  123 ;  State  v.  Petsch,  43  S.  Car.  132,  20 

477.  S.  E.  Rep.  993,  999 ;  Mattox  v.  United 

'McPherson  v.  State,  22  Ga.  478.  States,  146  IT.  S.  140;  People  ».  Fong 

2  State  v.  Nelson,  101  Mo.  464,  468;  Ah  Sing,  70  Cal.  8,  13. 

Adams  v.  People,  47  111.  376.  6 People  v.  Beach,  87  N.  Y.  508. 

3  People  v.  Chin  Mook  Sow,  51  Cal.  'State  v.  Baldwin,  15  Wash.  St.  15, 
597;  Roberts  v.  State,  5  Tex.  App.  45  Pac.  Rep.  650;  Robbins  v.  State,  8 
141;  Mattox  v.  United  States,  146  U.S.  Ohio  St.  131;  People?'.  Murray,  52 
140.  Mich.  288;  State  v.  Price,  6  La.  An. 

4  People  o.  Farmer,  77  Cal.  1.  691 ;  Com.  v.  Carey,  12  Cash.  (Mass.) 

5  State  v.  Terrell,  12  Rich.  (S.  Car.)  246,  249;  State  v.  Nash,  7  Iowa  347; 


140 


CRIMINAL    EVIDENCE. 


§  112 


complete  character,1  or  even  the  manifest  untruthfulness  of  the 
dying  declaration,  is  no  valid  objection  to  its  admissibility, 
however  much  these  detract  from  its  credibility  as  evidence. 
The  fact  that  the  deceased  accuses  a  person  who  could  not 
possibly  have  been  present  when  he  was  slain,  does  not  ex- 
clude his  statement  as  against  others.2 

Declarations  made  by  the  deceased  'contradicting  his  dying 
declaration  are  admissible  to  impeach  it,  though  they  are  not 
shown  to  have  been  made  under  a  sense  of  impending  death,3 
and  (as  it  is  generally  impossible  to  do  so, )  it  is  never  necessary 
that  the  attention  of  the  deceased  should  have  been  called  to 
the  occasion  and  circumstances  of  the  contradictory  statements.4 
Declarations  of  the  deceased,  not  made  in  contemplation  of 
death,  have  been  received  to  corroborate  his  dying  declaration.5 


§  112.  The  form  of  the  declaration. — It  is  not  necessary  that 
the  deceased  should  have  been  formally  examined  or  ques- 
tioned as  though  he  were  upon  the  witness  stand.  Dying  dec- 
larations elicited  by  persistent  questioning  or  persuasion,  or 
by  the  most  urgent  solicitation  to  tell  the  truth,  are  always  re- 
ceivable.6 

If  the  declarant  had  sufficient  mental  consciousness  to  know 
what    he    was    saying,    the    fact  that  he  was  partially  under 


Woodsides  v.  State,  2  How.  (Miss.) 
655;  Walston  v.  Com.,  16  B.  Mon. 
(Ky.)  15;  State  v.  Vansant,  80  Mo. 
67;  Anthony  v.  State,  Meigs  (Tenn.) 
265,  277 ;  Campbell  v.  State,  11  Ga.  353 ; 
Burrellv.  State,  18  Tex.  713;  People 
v.  Glenn,  10  Cal.  32. 

1  Richards  v.  State,  82  Wis.  172, 179 ; 
State  v.  Patterson,  45  Vt.  308,  313; 
State  v.  Giroux,  26  La.  An.  582. 

2  White  v.  State,  30  Tex.  App.  652,655. 

3  State  v.  Lodge,  9  Houst.  542; 
Carver  v.  United  States,  164  U.  S.  694, 
17  S.  Ct.  228;  Morelock  v.  State,  90 
Tenn.  528. 

4  People  v.  Lawrence,  21  Cal.  368; 
Carver  v.  United  States,  164  U.  S.  694, 
17  S.  Ct.  228. 


5  State  v.  Blackburn,  80  N.  Car.  474, 
478;  State  v.  Craine  (N.  C,  1897),  27 
S.  E.  Rep.  72. 

6  Com.  v.  Haney,  127  Mass.  455,  458 ; 
Anderson  v.  State,  79  Ala.  5;  Jones 
v.  State,  71  Ind.  66 ;  State  v.  Wilson, 
24  Kan.  189 ;  White  v.  State,  30  Tex. 
App.  655;  North  v.  People,  139  111.  81. 
The  fact  that  the  accused  was  forcibly 
taken  before  his  dying  victim  will  not, 
it  seems,  exclude  a  dying  declaration 
identifying  him.  People  v.  Gardner, 
144  N.  Y.  119,  128.  The  fact  that  the 
dying  declarant  was  under  oath  while 
speaking  does  not  exclude  his  state- 
ments. State  v.  Talbert,  41  S.  Car. 
526,  529;  1  Bish.  Cr.  Prac,  161. 


§  112  DYING    DECLARATIONS.  141 

the  influence  of  a  narcotic  will  not  render  his  statement  inad- 
missible.1 But  the  declaration  must  be  complete  in  itself,  and 
nothing  should  remain  to  be  said  by  the  declarant  which  will 
materially  qualify,  enlarge  or  restrict  its  meaning.2  Not  that 
the  declarant  must  state  every  fact  making  up  the  res  gestae  of 
the  homicide,  but  his  statement  of  any  given  fact  should  be  a 
full  expression  of  all  he  meant  to  say  as  conveying  his  mean- 
ing as  to  such  fact.3  In  case  the  declaration  was  committed  to 
writing  by  a  witness  who  was  present,  it  is  very  proper  to  pro- 
duce the  writing.  But  whether  the  writing  is  evidence  at  all 
depends  on  a  variety  of  circumstances.  If  it  was  signed  by 
the  deceased,  or,  he  being  physically  unable  to  sign  it,  was  as- 
sented to  and  adopted  by  him,  it  certainly  is  evidence  to  show 
the  precise  language  used  by  him.  It  is  not  proper  to  limit 
the  use  of  such  a  paper  to  refreshing  the  memory  of  a  witness 
who  heard  the  declaration,  nor  should  the  writing  be  excluded 
because  not  supplemented  by  the  oath  of  a  witness  that  it  is 
correct,4  or  because  it  does  not  precisely  reproduce  the  language 
of  the  oral  declaration,  if  it  was  read  to  the  deceased  and  he 
then  stated  that  it  was  all  he  wanted  to  say.5  Granting  that 
the  writing  is  evidence,  and  that  its  sole  use  is  not  merely  to 
refresh  the  memory,  the  question  remains  to  be  considered,  is 
it  the  best  or  primary  evidence  of  the  oral  declaration,  so  that 
its  absence  must  be  accounted  for  before  the  declaration  can 
be  proved  by  parol  evidence?  Upon  this  question  the  cases 
are  divided.  The  original  statements  were  oral,  and  the  mere 
fact  that  they  were  written  down  as  uttered  gives  the  writing 
no  greater  value  as  evidence.  On  these  grounds  many  author- 
ities hold  that  the  writing,  even  though  signed  and  sworn  to 
by  the  deceased,  is  not  the  best  evidence  of  the  declaration,6 

1  People  v.  Beverly  (Mich.,  1896) ,66    W.  Rep.  838.     Cf.  Com.  v.  Haney,  127 
N.  W.  Rep.  379;  State  v.  Reed  (Mo.,     Mass.  455,  458. 

1897),  38  S.  W.  Rep.  574 ;  Hays  v.  Com.  5  People  v.  Bemmerly,  87  Cal.  117. 

(Ky.,  1893),  14  S.  W.  Rep.  833.  6  State  v.  Whitson,  111  N.  Car.  695, 

2  Com.  v.  Vass,  3  Leigh  (Va.),  786;  697,  698;  Darby  v.  State,  92  Ala.  9,  15; 
State  v.  Murdy,  81  Iowa  603,  State  v.  Mathes,  90  Mo.  571 ;    Com.  v. 

3  State  v.  Patterson,  45  Vt.  308,  313.     Haney,  127  Mass.  455,  458 ;    Anderson 
4Turner  v.  State,  89  Tenn.  547,  15  S.    v.  State,  79  Ala.  5,  8 ;  State  v.  Patterson. 


142  CRIMINAL  EVIDENCE.  §  113 

and  some  even  limit  its  use  to  refreshing  the  memory  of  the 
witness.  But  this  rule  is  not  of  universal  recognition,  and  it 
has  several  times  been  held  that  the  writing  is  primary  evi- 
dence, so  that  its  absence  must  be  accounted  for  before  its  con- 
tents can  be  proved  by  parol.1  If  the  dying  declaration  was 
committed  to  writing  by  an  official  under  some  express  statu- 
tory requirement,  it  partakes  of  the  character  of  a  public  writ- 
ing or  record,  and  must  be  proved  as  such. 

Where  the  written  declaration  is  not  read  to  or  signed  by  the 
deceased,  it  is  certainly  not  primary  evidence.2  It  may  be 
doubtful,  under  such  circumstances,  if  it  is  competent  as  evi- 
dence at  all,  though  it  may  be  used  to  refresh  the  memory  of 
a  forgetful  witness.3 

That  some  statements  were  committed  to  writing,  while 
others  were  not,  does  not  exclude  parol  proof  of  those  wholly 
oral  when  the  writing  can  not  be  produced  or  its  absence  ac- 
counted for.4 

§  113.  Declarations  by  signs — Mental  condition  of  the  de- 
clarant.— The  declaration  is  usually  oral,  though  this  is  by  no 
means  indispensable.  It  may  be  made  by  signs,  where  the 
dying  person  is  speechless,  as  by  a  nod,  the  pressure  of  the 
hand,  or  by  pointing  to  visible  persons  or  objects.5 

Under  these  circumstances,  and  also  where  the  declaration 

45  Vt.  308,  314 ;    State  v.  Sullivan,  51  179,  181 ;  State  v.  Schmidt,  73  Iowa  469  ; 

Iowa  142.  Underbill  on  Ev.,  p.  146.     Otherwise 

JKing  v.  State,  91  Tenn.  617,650;  if  the  writing  is  produced.     Adams  v. 

People  v.  Glenn,  10  Cal.  32;   State  v.  State  (Tex.,  1894),  19  S.  W.  Rep.  907. 

Parham,  48  La.  An.  1309,  20  So.  Rep.  Cf.  State  v.  Finley,  118  N.  Car.  1161, 

727 ;   People  v.  Callaghan,  4  Utah  49 ;  24  S.  E.  Rep.  495. 

Drake  v.  State,  25  Tex.  App.  293 ;  Col-        5  "  If  the  injured  person  had  but  the 

lier  v.   State,   20  Ark.  36;    Jones  v.  action  of  a  single  finger  and  with  that 

State,  71  Ind.  66;  State  v.  Tweedy,  11  pointed  to  the  words  yes  or  no  in  an- 

lowa  350 ;   Merrill  v.  State,  58  Miss,  swer  to  questions  in  such  a  manner  as 

65,  67.  to  render  it  probable  that  he  under- 

2  State  v.  Sullivan,  51  Iowa  142.  stood,  and  was  at  the  time  conscious 

3  Anderson  v.  State,  79  Ala.  5.  that  he  could  not  recover,  it  is  admis- 
4 People  v.  Simpson,  48  Mich.  475;  sible."      Com.    v.    Casey,    11    Cush. 

Reg.  v.  Reason,  1  Str.  499,  500;  State  (Mass.)  417  422;  Mockabee  v.  Com., 
v.  Walton,  92  Iowa  455,  61  N.W.  Rep.     78  Ky.  380,  382. 


§114 


DYING    DECLARATIONS. 


143 


is  offered  in  writing,1  it  must  appear  by  independent  evidence 
that  the  declarant  was  mentally  conscious,2  realized  his  dying 
condition,3  possessed  memory,  consciousness  and  intelligence 
sufficient  to  know  what  he  was  doing  and  saying,  and,  where 
a  declaration  in  writing  is  offered,  that  he  understood  clearly 
its  contents.4 

§  114.  Dying  declarations  made  by  children. — It  is  always 
necessary,  in  order  that  a  dying  declaration  should  be  admitted, 
to  show  that  the  declarant,  if  living,  would  be  a  competent 
witness.  If,  therefore,  it  appears  from  the  facts  of  the  case 
that  the  deceased  was  a  child  of  tender  years,  not  possessed  of 
sufficient  memory  or  intelligence  to  comprehend  the  nature 
and  religious  sanction  of  an  oath,  or  that  he  did  not  expect  to 
be  punished  in  a  future  state  if  he  told  a  lie,  the  declaration 
should  be  rejected.5 


1  Tracy  v.  People,  97  111.  101. 

2  Mitchell  v.  State,  71  Ga.  128. 

8  People  v.  Shaw,  63  N.  Y.  36,  40. 

4  McBride  v.  People,  5  Colo.  App.  91, 
37  Pac.  Rep.  953,  956;  Binfield  v. 
State,  15  Neb.  484.  See  Tracy  v.  Peo- 
ple, 97  111.  101,  108-110. 

5  In  Rex  v.  Pike,  3  C.&  P.  598,  the  dec- 
laration of  a  four-year-old  child  was 
rejected  because,  while  it  was  shown 


that  she  knew  she  would  die,  she  did 
not  have  that  idea  of  a  future  state 
which  is  needed  to  make  such  a  decla- 
ration admissible.  But  in  Reg.  v.  Per- 
kins, 9  Car.  &  P.  396,  the  declaration 
of  a  child  was  admitted  upon  it  being 
shown  that  he  had  a  proper  concep- 
tion of  a  future  existence  beyond  the 
grave. 


CHAPTER  XI. 

CONSCIOUSNESS    OP    GUILT. 

§  115.   Facts  showing  a  consciousness     §  120.   Resistance  to  arrest. 

of  guilt.  121.   Fabricating  or  suppressing  evi- 

116.  Falsehoods  by  accused  or  sus-  dence. 

pected  persons.  122.   Silence  under  accusations  of 

117.  Demeanor  subsequent  to  crime.  guilt. 

118.  The  flight  or  attempted  escape        123.   Attendant    circumstances  ex- 

of  the  accused.  plaining  motives  and  reasons 

119.  Explanation  by  accused  of  his  of  silence. 

flight  or  attempted  escape.  124.  The    accusing     statement     or 

question. 

§  115.  Facts  showing  a  consciousness  of  guilt. — Evidence  of 
circumstances,  which  are  part  of  a  person's  behavior  subse- 
quent to  an  event  with  which  it  is  alleged  or  suspected  he  is  con- 
nected with  or  implicated  in,  are  relevant  if  the  circumstances 
are  such  as  would  be  natural  and  usual,  assuming  the  connec- 
tion or  implication  to  exist.  This  rule  of  circumstantial  evi- 
dence may  be  regarded  as  almost  universally  applicable.  And 
sometimes,  but  not  universally,  evidence  of  actions  and  cir- 
cumstances, inconsistent  with  such  an  assumption,  is  relevant 
as  a  basis  for  an  inference  that  the  person  accused  or  suspected 
did  not  participate  in  the  event.  Under  these  rules  evidence 
will  be  received  to  prove  or  disprove  facts  or  circumstances 
which  indicate  a  consciousness  of  guilt  on  the  part  of  the 
accused,  existing  after  the  crime  with  which  he  is  charged 
was  committed.  His  conduct  and  general  demeanor,  his 
language,  oral  or  written,  and  his  mental  and  physical  attitude 
and  relations  towards  the  crime,  or  his  actions  in  the  presence 
of  those  who  discovered  it,  or  who  are  engaged  in  detecting  its 
perpetrator,  are  relevant.1 

1McAdory  v.  State,  62  Ala.  154;  v.  Welsh,  63  Cal.  167;  State  v.  Hill 
People  v.  Stanley,  47  Cal.  113 ;  People    134  Mo.  663,  36  S.  W.  Rep.  223. 

(144) 


§   116  CONSCIOUSNESS    OF    GUILT.  145 

The  time  which  has  elapsed,  between  the  date  of  the  crime 
and  the  occurrence  of  the  incriminating  or  accusatory  actions 
relied  on  to  connect  the  accused  with  it,  is  sometimes  an  im- 
portant element.  The  circumstances  of  the  conduct  of  the  ac- 
cused must  not  be  so  remote  in  time  or  extend  over  so  long  a 
period  as  to  create  a  strong  probability  that  they  are  the  out- 
come of  other  motives  than  consciousness  of  guilt.1  On  the 
other  hand  the  reception  of  this  evidence  never  depends  on  its 
contemporaneous  connection  with  the  crime  that  is  charged, 
or  on  its  being  a  part  of  the  res  gestse.2 

§  116.  Falsehoods  by  accused  or  suspected  persons. — Evi- 
dence that  a  person  told  falsehoods,  or  avoided,  or  attempted 
to  avoid,  giving  information  of  himself,  his  actions  or  his 
whereabouts,  at  or  about  the  time  of  the  crime,  in  describing  it 
or  his  relation  to  it,3  as  when  he  has  given  false  testimony  at  a 
coroner's  inquest,4  or  before  a  grand  jury,5  is  always  relevant 
to  show  a  consciousness  of  guilt.6  Such  evidence  would  seem 
to  have  greater  relevancy  and  cogency  if  the  falsehoods  were 
uttered  after  their  author  knew  he  was  suspected  or  accused 
than  before. 

Conscious  innocence  has  nothing  to  fear  from  the  fullest 
revelation  of  the  truth.  The  intentional  fabrication  of  false  or 
contradictory  explanations  of  suspicious  circumstances,  or  the 

1  State  v.  Baldwin,  36  Kan.  1,  12.  4  Hays  v.  State,  40  Md.  633;  Lovett 

2  People  v.  Stanley,  47  Cal.  113,  119;    v.  State,  60  Ga.  257,  260. 

People  v.  Welsh,  63  Cal.  167.  5  State    v.  Broughton,   7   Ired.    (N. 

3  State  v.  Williams,  66  Iowa  573, 574 ;     Car.)  96,  101. 

Cathcart  v.  Com.,  37  Pa.  St.  108,  113;  6  So,  too,  it  may  be  shown  that  the 

State  v.  Williams,    27  Vt.    724,   726;  accused  has  sworn  to  a  falsehood  in 

State  v.  Bradley,  64  Vt.  466, 469 ;  Hicks  an  affidavit  made  and  used  to  procure 

v.  State,  99  Ala.  169,  171 ;  13  So.  Rep.  a  continuance.    State  v.  Bishop,  98  N. 

375 ;  Huffman  v.  State,  28  Tex.  App.  Car.  773,  4  S.  E.  Rep.  357.     But  it  is 

174;  State  v.  Cronin,  64  Conn.  293,  305;  only  when  the  statement  is  relevant 

Com.  v.  Tolliver,  119  Mass.  312 ;  Com.  to  the  issue  that  it  can  be  proved.    Its 

v.  Trefethen,  157  Mass.  180;  McCann  falsity  can  not  be  shown  merely  for  the 

r.  State,  21  Miss.  471,  497  (denial  of  purpose  of  showing  he  perjured  him- 

name);   Reg.    v.  Miller,  18  Cox  Cr.  self.     Farrell  v.  People,  103  111.  17; 

Cas.  54;  Wilson  v.  United  States,  162  Burris  v.  State,  38  Ark.  221. 
U.  S.  613,  16  S.  Ct.  895;    Hamilton  v. 
State,  62  Ark.  543,  36  S.  W.  Rep.  1054. 
10-Cr.  Ev. 


146  CRIMINAL  EVIDENCE.  §  117 

employment  of  evasion,  equivocation  or  falsehood  to  divert  or 
stifle  inquiry,  is  always  relevant  and  proper,  for  it  may  with 
reason  be  presumed  that  an  evil  intention  prompted  the  effort 
to  hide  the  truth.1 

The  false  statements  of  the  accused  may  be  proved  by  the 
state,  and  their  falsity  may  then  be  shown  in  various  ways.2 
In  the  first  place  it  may  be  done  in  a  very  satisfactory  and  con- 
vincing manner  by  direct  proof  that  the  reverse  of  the  facts 
alleged  in  the  statements  is  true.  So,  the  falsity  of  a  statement 
or  explanation  may  be  brought  out  by  showing  that  the  facts 
stated  are  absolutely  inconsistent  and  irreconcilable  with  other 
facts  proved  or  admitted,  or  that  the  particular  statement  in 
question  is  contradicted  by  other  statements  by  the  prisoner, 
and  finally  by  the  inherent  improbability  of  the  facts  asserted.3 

Testimony  that  the  accused  has  been  guilty  of  falsehood  must 
always  be  somewhat  unreliable  intrinsically.  As  in  the  analo- 
gous cases  of  admissions  and  conduct,  its  force  depends  largely 
upon  the  temperament,  education  and  habits  of  life  and  busi- 
ness of  the  prisoner.  If  the  evidence  of  the  alleged  falsehood 
is  doubtful  it  is  entitled  to  no  weight.  That  the  accused  has 
lied  should  be  established  beyond  cavil,  as  it  is  only  circum- 
stantial and  collateral  to  the  main  issue.4 

§  117.  Demeanor  subsequent  to  crime. — The  appearance  and 
bearing  of  the  accused  and  his  behavior  when  confronted  with 
the  consequences  or  with  scene  or  surroundings  of  the  crime 
with  which  he   is  charged  are  always  relevant.5     It  may  be 

People  v.  Conroy,  97  N.  Y.  62,  80;  with  each  other.     If  the  prisoner  is 

Cathcart  v.  Com.,'  37  Pa.  St.  108,  113;  innocent  there  is  no  reason  for  with- 

Com.  v.  Twitchell,  1  Brew.  (Pa.)  551,  holding  a  true  fact.     Still  less  is  there 

608.  for  uttering  a  falsehood.     Falsehood 

2  People  v.  Arnold,  43   Mich.  303;  is  evidence  of  crime.  Every  falsehood 

Smith  v.  State,  29  Fla.  408, 10  So.  Rep.  uttered  by  way  of  exculpation  becomes 

894 ;   Reg.  v.  Miller,  18  Cox  Cr.  Cas.  an  article  of  circumstantial  evidence 

54;  Burton  v.  State  (Ala.,  1895),  18  So.  of  greater  or  less  inculpatory  force. 

Rep.  284;  People©.  Evans  (Cal.,  1896),  State  v.  Benner,  64  Me.  267,  285. 

41  Pac.  Rep.  444.  *  State  v.  Williams,  27  Vt.  724,  726. 

sBurrill  on  Cir.  Ev.,  pt.  2,  ch.  1,  p.  5  Handline  v.   State,   6  Tex.    App. 

491.     "Truth  is  the  reliance  of  inno-  347;  State  v.  Hill,  134  Mo.  663,  36  S. 

cence.     Falsehood    is    the   resort    of  W.  Rep.  223. 
crime.     All  true  facts  are  consistent 


§  118 


CONSCIOUSNESS    OF    GUILT. 


147 


shown  that  shortly  after  the  crime  he  drank  to  excess1,  or  was 
very  nervous,  worried,2  excited,3  mentally  pre-occupied,4  and 
manifested  fear  and  turned  pale  on  being  arrested  for  the 
crime  ;5  or  showed  a  lack  of  feeling  as  the  result  of  a  homicide 
with  which  he  is  charged,  when,  from  his  near  relation  to  the 
deceased,  the  manifestation  of  great  and  sorrowful  emotion 
would  naturally  be  expected.6 

It  can  not  be  shown  that  the  accused  refused  to  allow  his 
house  to  be  searched  without  a  warrant  as  his  insistence  upon 
an  undoubted  constitutional  right  is  a  circumstance  perfectly 
consistent  with  innocence.7 

It  may  be  shown  that  the  accused  wrote  to  the  prosecutor 
offering  to  take  a  whipping  if  he  would  let  him  off,8  or  that  he 
offered  to  pay  money  to  stifle  the  investigation  or  prosecution 
of  the  crime  of  which  he  is  suspected.9  The  rule  excluding 
compromises  in  civil  suits  does  not  apply  to  criminal  proceed- 
ings.10 

§  118.    The  flight  or  attempted  escape  of  the  accused. — The 

prosecution  may  show  by  questions  put  to  the  accused  on  his 
cross-examination,11  or  otherwise,  that  he  had  attempted  flight, 


1  People  v.  O'Neill,  112  N.  Y.  355, 
363. 

2  State  v.  Ward,  61  Vt.  153,  194,  17 
Atl.  Rep.  483 ;  State  v.  Bradley,  64  Vt. 
466,  470,  24  Atl.  Rep.  1053., 

3  Miller  v.  State,  18  Tex".  App.  232; 
Prince  v.  State,  100  Ala.  144;  14  So. 
Rep.  409,  411. 

4  Noftsinger  v.  State,  7  Tex.  App. 
301. 

5  State  v.  Baldwin,  36  Kan.  1,  12; 
Williams  v.  State  (Ark.,  1891),  16  S. 
W.  Rep.  816,  818;  Lindsey  v.  People, 
63  N.  Y.  143. 

6  Greenfield  v.  People,  85  N.  Y.  75, 
86.  Such  evidence  is  not  admissible 
if  it  refers  to  a  date  several  months 
after  the  death.  State  v.  Baldwin,  36 
Kan.  1. 

7Mardock  v.  State,  68  Ala.  567. 
"  Such  indications  are  by  no  means 


conclusive  and  must  depend  upon  the 
mental  characteristics  of  individuals. 
Innocent  persons,  appalled  by  a 
charge  of  crime,  will  sometimes  ex- 
hibit great  weakness  and  terror.  Per- 
sons under  a  great  weight  of  sorrow 
will  sometimes  manifest  the  greatest 
composure  and  serenity  and  shed  no 
tears."  Greenfield  v.  State,  85  N.  Y. 
75,  86.  Cf.  People  v.  Giancoli,  74  Cal. 
642,  644,  also,  Liles  v.  State,  30  Ala. 
24,  25. 

8  State  v.  De  Berry,  92  N.  Car.  800, 
801. 

9  State  v.  Soper,  16  Me.  293,  295. 

10  Cf.  State  v.  Wright,  48  La.  An. 
1525,  21  So.  Rep.  160. 

"Ryan  r.  People,  79  N.  Y.  593; 
Manning  v.  State,  79  Wis.  178,  48  N. 
W.  Rep.  209 ;  Bell  v.  State  (Ala.,  1897), 
22  So.  Rep.  526. 


J  48 


CRIMINAL    EVIDENCE. 


§  118 


or  had,  by  concealment  or  other  means,1  attempted  to  escape 
from  arrest  or  custody;2  that  he  had  offered  a  bribe  to  procure 
his  escape,3  had  requested  a  fellow-prisoner  or  some  other  per- 
son to  bring  him  tools  for  that  purpose,4  or  was  actually  in 
possession  of  such  tools.5  The  flight  of  the  accused  after  the 
crime  can  not  be  proved  against  another  person  who  was  not 
actually  implicated  in  aiding  or  procuring  it.6  Nor  can  the 
flight  of  a  third  person,  whose  connection  with  the  crime  does 
not  appear,  be  proved  to  show  that  he  committed  it.7 

An  attempt  by  a  prisoner  in  jail  awaiting  trial  for  two  dis- 
tinct crimes  to  escape  is  not  relevant  to  show  that  he  is  guilty 
of  either.  It  is  impossible  to  determine  which  charge  he  fled 
to  avoid.8  He  may  have  fled  because  conscious  that  he  was 
guilty  of  the  one  for  which  he  is  not  on  trial. 

It  can  not  with  correctness  be  said  that  the  flight  or  at- 
tempted flight  of  the  accused  before  his  arrest,  taken  alone, 
raises  any  legal  presumption  of  guilt,9  or  that  his  flight,  with- 


1  Jamison  v.  People,  145  111.  357; 
State  v.  Moore,  101  Mo.  316 ;  Clarke  v. 
State,  8  Crim.  L.  Mag.  19;  Peoples. 
Petmecky,  2  N.  Y.  Crim.  Rep.  450; 
McCann  v.  State,  21  Miss.  471,  475; 
Com.  v.  Brigham,  147  Mass.  414. 

2  Allen  v.  United  States,  166  U.  S.  492, 
17  S.  Ct.  154 ;  State  v.  Chase,  68  Vt.  405, 
35  Atl.  Rep.  336;  States.  Evans  (Mo., 
1897),  39  S.  W.  Rep.  462;  McBride  v. 
People,  5  Colo.  App.  91 ;  Anderson  v. 
State,  104  Ind.  467,  472;  State??.  How- 
ell, 117  Mo.  307;  State  v.  Minard 
(Iowa,  1896),  65  N.  W.  Rep.  147; 
Williams  v.  State,  24  Tex.  App.  17,  32; 
People  v.  Ogle,  104  N.  Y.  511,  4  N.  Y. 
Cr.  Rep.  349;  Elmore  v.  State,  98  Ala. 
12,  13  So.  Rep.  427 ;  State  v.  Harris,  48 
La.  An.  1189 ;  State  v.  Palmer,  65  N.  H. 
216 ;  Ryan  v.  State,  83  Wis.  486 ;  State 
v.  Fitzgerald,  63  Iowa  268 ;  Com.  v.  Mc- 
Mahon,  145  Pa.  St.  413;  State  v.  Fos- 
ter (Mo.,  1897),  38  S.  W.  Rep.  721; 
Ryan  v.  People,  79  N.  Y.  593. 

3  Whaley  w.  State,  11  Ga.  123,  127. 


4  State  v.  Jackson,  95  Mo.  623 ;  Peo- 
ple v.  Petmecky,  2  N.  Y.  Cr.  Rep.  450. 

5  State  v.  Duncan,  116  Mo.  288,  22  S. 
W.  Rep.  699;  Clark  v.  Com.  (Ky., 
1896),  32  S.  W.  Rep.  131. 

6  People  v.  Stanley,  47  Cal.  113,  118 ; 
State  v.  Ruby,  61  Iowa  86.  But  on  the 
trial  of  the  accessory  evidence  of  the 
concealment  and  flight  of  a  principal 
not  yet  convicted  is  admissible  to 
establish  the  guilt  of  the  principal. 
State  v.  Rand,  33  N.  H.  216;  Cum- 
mins v.  People,  42  Mich.  142,  143; 
Mclntyre  v.  State  (Tex.,  1896),  33  S. 
W.  Rep.  347;  People  v.  Cleveland 
(Mich.,  1896),  65  N.  W.  Rep.  216. 

7  Owensby  v.  State,  82  Ala.  63. 

8  People  v.  McKeon,  19  N.  Y.  Supp. 
486,  487. 

9  In  Ryan  v.  People,  79  N.  Y.  593, 19 
Hun  188,  the  court  said:  "The  evi- 
dence that  the  defendant  made  an 
effort  to  keep  out  of  the  way  of  the 
sheriff  was  very  slight,  if  any  evidence 
of  guilt.     There  are  so  many  reasons 


§  119  CONSCIOUSNESS    OF    GUILT.  149 

out  regard  to  the  motive  which  jyrompted  it,  is,  in  law,  evidence  of 
guilt.  At  the  most  it  is  only  a  circumstance  to  be  considered 
by  the  jury  with  the  reasons  that  prompted  it,  tending  to  show 
guilt  or  by  which  an  inference  of  guilt  maybe  raised,1  and  it 
has  no  probative  force  unless  it  appears  that  the  accused  fled 
to  avoid  arrest  or  imprisonment.  Even  then  its  force  is 
slight,  depending  on  the  efforts  made,  the  means  employed, 
and  the  motives  and  knowledge  by  which  the  act  was  accom- 
panied. The  departure  of  the  accused  may  have  been  prompted 
by  motives  consistent  with  innocence.  He  may  have  feared 
arrest  for  a  crime  totally  distinct  from  that  for  which  he  is  in- 
dicted, or  he  may  have  apprehended  violence  at  the  hands  of 
the  police. 

§  119.  Explanation  by  accused  of  his  flight  or  attempted 
escape. — Nor  is  the  attempt  of  the  accused  to  escape  from  act- 
ual incarceration  conclusive  evidence  of  guilt.  His  actions 
may  have  arisen  from  a  consciousness  of  guilt,  the  fear  of  trial 
and  the  dread  of  punishment.  But  it  is  equally  probable  that 
they  may  have  been  prompted  by  the  fear  that,  though  inno- 
cent, his  poverty  will  make  it  impossible  for  him  to  defend 
himself,  or,  being  unable  to  give  bail,  and  suffering  from  ill- 
ness, he  may  seek  liberty  in  order  to  avoid  the  discomforts  and 
privations  of  imprisonment.2 

The  evidence  should  go  to  the  jury,  who  are  the  sole  judges 

for  such  conduct,  consistent  with  in-  223;  People  v.  Giancoli,  74  Cal.  642, 

nocence,  that  it  scarcely  comes  up  to  644;  Sylvester  v.  State,  71  Ala.  17,  26, 

the  standard  of  evidence  tending  to  72  Ala.  201,  206;  Fox  v.  People,  95  111. 

establish  guilt,  but  this   and   similar  71,  76. 

evidence  has  been  allowed  upon  the        2  State  v.  Mallon,  75  Mo.  355.    The 

theory  that  the  jury  will  give  it  such  character  of  the  offense  ought  to  be 

weight  as  it  deserves,  depending  upon  considered  in  determining  the  motives 

the  surrounding  circumstances."     To  that  prompted  the  flight.     An   inno- 

the  same  effect,  see,  Alberty  v.  United  cent  man  accused  of   a  capital  crime 

States,  162  U.  S.  499,  16  S.  Ct.  864.  may  flee    or    attempt   to  break   jail, 

1  Hickory  v.  United  States,  160  U.  S.  while,  if  the  charge  involved  a  misde- 

408;  State  v.  Rodman,  62  Iowa  456;  meanor    only,    he    may   be    willing, 

State??.  Brooks,  92  Mo.  542;  Starr  v.  though  innocent,  to   stand  trial   and 

United  States,  164  U.  S.  627,  17  S.  Ct.  be  punished  if  convicted. 


150  CRIMINAL  EVIDENCE.  §  119 

of  its  weight  and  sufficiency,1  and  of  the  motives  which 
prompted  the  flight.2  It  need  not  always  be  shown  that  the 
accused  actually  anticipated  arrest  at  the  moment  of  his  es- 
cape.3 But  the  mere  fact  that  the  accused  left  the  county  is 
not  relevant  if  it  is  not  shown  that  he  did  so  to  avoid  arrest,4 
and  the  motives  of  his  departure  may  be  inferred  from  the  cir- 
cumstances.5 The  means  used  to  escape  may  be  shown  cir- 
cumstantially,6 and,  where  the  absence  of  the  accused  is  shown, 
inquiries  made  for  him  at  his  abode  or  usual  places  of  resort 
by  police  officers  or  others,  with  the  answers  given,  may  be 
received.7 

The  accused  is  not  required  to  explain  his  flight  or  conceal- 
ment by  evidence  tending  to  prove  beyond  a  reasonable  doubt 
that  his  motives  were  consistent  with  innocence.8  The  fact  of 
his  flight  is  a  circumstance  whose  meaning  is  for  the  jury  to 
determine,  and  he  must  be  permitted  to  show  the  rectitude  of 
his  motives  in  fleeing.9  He  should  be  allowed  to  prove  that, 
before  the  date  of  the  crime,  he  had  intended  or  had  arranged 
to  leave  the  state;10  that  his  flight  was  caused  by  threats11  or  act- 
ual mob  violence,12  if  he  fled  so  soon  after  the  threats  coming 


1  Carden  v.  State,  84  Ala.  417 ;  offense,  the  accused  should  not  be  al- 
Thomas  v.  State,  109  Ala.  25,  18  So.  lowed  to  explain  the  motives  of  his 
Rep.  229;  Miller  v.  State,  110  Ala.  69,  flight.  People  v.  Ah  Choy,  1  Idaho 
19  So.  Rep.  37 ;  White  v.  State  (Ala.,  317.  See,  also,  State  v.  Melton,  37  La. 
1897),  21  So.  Rep.  330;  Ryan  v.  People,  An.  77. 

79  N.  Y.  593 ;  Fox  v.  People,  95  111.  71,  10  State  v.  Potter,  108  Mo.  424.  When 

77.  he  left  the  county  immediately  after 

2  Elmore  v.  State,  98  Ala.  12,  13  So.  the  crime  it  may  be  shown,  to  illus- 
Rep.  427.  trate  his  motive  in  leaving  that,  prior 

3  State  v.  Frederic,  69  Me.  400,  403.  to  the  crime,  he  had  entered  into  a 

4  State  v.  King,  78  Mo.  555;  State  v.  contract  which  would  require  him  to 
Marshall,  115  Mo.  383,  22  S.  W.  Rep.  remain.  Welsh  v.  State,  97  Ala.  1,  12 
452,  453.  So.  Rep.  275. 

5  Welch  v.  State,  104  Ind.  347,  353.  "  Lewallenu.  State,  33  Tex.  Cr.  Rep. 

6  State  v.  Fitzgerald,  63  Iowa  268.  412,  26  S.  W.  Rep.  832;  State  v.  Bar- 

7  People  v.  Ogle,  104  N.Y.  511, 4  N. Y.  ham,  82  Mo.  67. 

Cr.  Rep.  349.  12  State  v.  Baker  (Mo.)  ,19  S.W.  Rep. 

8  Fox  v.  People,  95  111.  71.  222,  224;  State  v.  Griffin,  87  Mo.  608; 

9  It  seems  that  where  there  is  no  State  v.  Brooks,  92  Mo.  542;  Batten  v. 
question  as  to  who  committed  the  act,  State,  80  Ind.  394.  Cf.  Kennedy  v. 
and  the  only  issue  is  the  degree  of  the  Corn.,  78  Ky.  447. 


§  120  CONSCIOUSNESS    OF    GUILT.  151 

to  his  knowledge  as  to  show  they  caused  it;1  that  great  public 
excitement  existed,  creating  apprehensions  of  violence;2  and  that 
he  was  advised  or  warned  by  relatives  and  friends  to  flee,3  be- 
cause his  life  was  menaced. 

But  evidence  to  show  that  the  accused  had  an  opportunity 
to  escape,  or  to  break  jail,  of  which  he  did  not  avail  himself;4 
that  he  offered  to  surrender  himself  to  the  authorities,5  or  tele- 
graphed to  the  sheriff  to  come  and  arrest  him,6  or  when  ar- 
rested out  of  the  jurisdiction  voluntarily  returned,7  is  inad- 
missible. Such  actions  may  have  been  prompted  by  the  fear 
of  recapture,  or  by  his  confidence  that,  though  guilty,  he 
would  be  acquitted  because  of  the  ability  of  his  counsel,  the 
insufficiency  of  the  evidence,  or  through  the  employment  of 
bribery,  perjury  or  political  or  social  influence.8  Nor  can  the 
accused  be  permitted  to  testify  that  he  left  the  country  because 
he  was  too  poor  to  make  a  proper  defense.9 

§  120.  Resistance  to  arrest. — An  innocent  person  has  noth- 
ing to  fear  from  a  mere  arrest.  Even  if  he  be  ill-supplied  with 
means  to  secure  his  acquittal  when  tried,  the  evidence  against 
him  may  be  so  intrinsically  weak  that  the  grand  jury  will  fail 
to  indict.  If  indicted,  at  least  in  crimes  of  less  magnitude,  he 
may,  by  securing  bail,  be  able  to  reduce  to  a  minimum  the 
annoyance  and  discomfort  he  suffers.  Hence  resisting  arrest, 
and  particularly  assaulting  or  attempting  to  kill  the  officer  who 

1  State  v.  McDevitt,  69  Iowa  549.  7  State  v.  Taylor,  134  Mo.  109,  35  S. 

2  State  v.  Phillips,  24  Mo.  475.  W.  Rep.  92.     Cf.  State  v.   Good,  132 
8  State  v.  Moncla,  39  La.  An.  868;     Mo.  114,  33  S.  W.  Rep.  790. 

Walters  v.  State,  17  Tex.  App.   226;  8  Defendant  cannot  be  permitted  to 

Arnold  v.  State,  9  Tex.  App.  435.  prove  that  his  conduct  in  jail  since 

4  State  v.  Wilkins,  66  Vt.  1,28  Atl.  his  arrest  has   been   good.     State  v. 

Rep.   323;    People    v.     Rathbun,    21  Fontenot,  48  La.  An.  305,  19  So.  Rep. 

Wend.  509,  518,  519;  People  v.  Mont-  111;  Hill  v.  State  (Tex.,  1896),  35  S. 

gomery,  53  Cal.  576,  578;  Johnston  v.  W.  Rep.  660. 

State,  94  Ala.  35,  10  So:  Rep.  667.  9Toliver  v.  State,  94  Ala.  Ill,  10  So. 

5 State  v.  Marshall,  115  Mo.  383,  22  Rep.  428.    The  appeal  bond  of  the 

S.  W.  Rep.  452;    People  v.  Cleveland  accused  and  its  forfeiture  are  admissi- 

(Mich.,  1896),  65  N.  W.  Rep.  216.  ble  to  prove  his  flight,   State  v.  Wing- 

6  Walker  v.  State,  13  Tex.  App.  618,  field,   34   La.  An.  1200;  Gilleland  v. 

643.  State,  24  Tex.  App.  524. 


152 


CRIMINAL    EVIDENCE. 


§  121 


makes  the  arrest,  is  strong  evidence  of  a  consciousness  of  guilt; 1 
and  the  fact  that  the  officer  did  not  know  the  accused  was 
charged  with  crime  will  not  exclude  evidence  of  resistance.2 

It  may  be  shown  that  the  accused  assaulted  a  bystander  who 
seized  him  on  the  occasion  of  the  crime,3  and  his  threats  that 
he  would  kill  anyone  who  attempted  to  arrest  him,  or  would  die 
before  he  would  surrender,  are  also  relevant.4 

§  121.  Fabricating  or  suppressing  evidence. — Evidence  to 
show  that  the  accused  has  attempted  to  fabricate  or  procure 
false  evidence  ,5  to  destroy  evidence  against  himself,6  to  cor- 
rupt the  witnesses  for  the  state,7  or  to  procure  their  absence,8 
by  threats  of  violence,9  or  otherwise,10  is  always  admissible  as 
showing  a  consciousness  of  guilt,  and  is  of  particular  value 
where  the  incriminating  evidence  is  mainly  circumstantial.11 

But  the  intentional  removal  of  written  evidence,  or  of  a  wit- 
ness from  the  jurisdiction,  or  the  failure  or  neglect  by  the 
accused  to  produce  evidence,  creates  no  legal  presumption  of 
his  guilt  or  that  the  evidence,  if  produced,  would  be  unfavor- 
able to  him,  in  the  absence  of  proof  of  an  intention  to  suppress 
the  evidence.12 


1  State  v.  Taylor,  118  Mo.  153,  24  S. 
W.  Rep.  449,  451 ;  State  v.  Moore,  101 
Mo.  316. 

2  State  v.  Grant,  79  Mo.  113,  136.  Cf. 
Russell  v.  State  (Tex.,  1897),  39  S.  W. 
Rep.  674. 

3  State  v.  Sanders,  76  Mo.  35. 

4  Horn  v.  State,  102  Ala.  144,  15  So. 
Rep.  278,  281 ;  Ross  v.  State,  74  Ala. 
532. 

5  See  Underhill  on  Evidence,  §  229. 

6 Cover  v.  Com.,  6  Cent.  Rep.  (Pa.) 
585. 

'People  v.  Marion,  29  Mich.  31. 

8  Collins  v.  Com.,  12  Bush  (Ky.) 
271;  State  v.  Barron,  37  Vt.  57.  Evi- 
dence that  a  third  person  paid  to  pro- 
cure the  absence  of  a  witness  is  inad- 
missible if  the  accused  is  not  privy 
thereto.  People  v.  Dixon,  94  Cal.  255 ; 
Com.  v.  Robbins,  3  Pick.  (Mass.)  63. 


9  Adams  v.  People,  9  Hun  (N.  Y.) 
89,  95. 

10  Conway  v.  State.  118  Ind.  482,  490. 
"Williams   v.  State,  22  Tex.  App. 

497,  505;  Whart.  Cr.  Ev.,  §750.  It 
may  be  proved  that  while  the  ac- 
cused was  in  jail  he  threatened  to 
kill  a  person  who  was  sent  to  identify 
him.  People  v.  Chin  Haue,  108  Cal. 
597,  41  Pac.  Rep.  697. 

12  To  use  the  fact  that  he  had  offered 
and  used  false  evidence  as  a  circum- 
stance against  him,  the  jury  must  be 
satisfied  beyond  all  question  that  he 
was  guilty  of  fabricating  it,  i.  e.,  intro- 
ducing it  knowing  it  to  be  false.  State 
v.  Ward,  61  Vt.  153,  194;  State  v.  Ma- 
goon,  68  Vt.  289,  35  Atl.  Rep.  310;  Al- 
len v.  United  States,  164  U.  S.  492,  17 
S.  Ct.  154. 


§   122  CONSCIOUSNESS    OF    GUILT.  153 

Whether  the  state  may  show  that  a  person  implicated  with  the 
accused,  or  a  person  who  had  a  very  full  and  complete  knowl- 
edge of  all  the  facts,  had  fled  from  the  reach  of  process,  in  or- 
der to  avoid  testifying  and  refused  to  return,  depends  on  cir- 
cumstances. It  must  be  shown  that  the  accused  had  procured 
the  absence  of  such  person;  or,  at  least,  that  he  had  some 
knowledge  of  his  intention  to  leave,  and  made  no  effort  to  secure 
his  attendance.1 

It  has  been  held  that  a  false  theory  of  defense  is  some  evi- 
dence of  guilt.  It  is  not  material  that  the  accused  did  not 
himself  invent  it,  but  adopted  a  scheme  put  forward  by  others. 
The  court  may,  therefore,  charge  that  the  false  theory  of  de- 
fense indicating  a  conscioussness  of  guilt  may  justify  the  jury 
in  convicting  the  prisoner,  if  the  incriminating  evidence,  in 
connection  with  the  false  defense,  satisfies  them  of  his  guilt.2 

§  122.  Silenee  under  accusations  of  guilt. — The  silence  of 
the  accused  as  regards  statements  in  his  hearing  which  impli- 
cate him  directly  or  indirectly  may  be  proved  with  the  state- 
ments,3 and  from  his  acquiescence  the  jury  may  infer  his  guilt. 
Silence  is  assent  as  well  as  consent,  and  may,  where  a  direct 
and  specific  accusation  of  crime  is  made,  be  regarded  under 
some  circumstances  as  a  gwasi-confession. 

An  innocent  person  will  at  once  naturally  repel  an  accusa- 
tion of  crime,  as  a  matter  of  self-preservation  and  self-defense, 
and  as  a  precaution  against  prejudicing  himself.  A  person's 
silence,  therefore,  particularly  when  persistent,  will  justify  an 
inference  that  he  is  not  wholly  innocent.  The  accused  may 
have  been  silent  when  interrogated  or  accused  before  a  magis- 
trate, which  is  termed  judicial  interrogation,  or  he  may  have 
been  silent  extra-judicially,  i.  e.,  when  accused  or  questioned 
by  private  persons  before  or  after  his  arrest. 

For  silence  to  be  equivalent  to  a  confession,  it  must  be 
shown  that  the  accused    heard    and    understood    the   specific 

People  v.   Sharp,   107  N.  Y.   427,        2Pilger  v.  Com.,  112  Pa.  St.  220,  230. 
463;  Com.  v.  Costello,  119  Mass.  214.        3  State  v.  Suggs,  89  N.  Car.  527. 


154 


CRIMINAL    EVIDENCE. 


§    123 


charge  against  him,1  and  that  he  heard  it  under  circumstances 
not  only  permitting  but  calling  for  a  denial,2  taking  into  con- 
sideration the  circumstances  and  the  persons  who  were 
present.3 

§  123.  Attendant  circumstances  explaining  motives  and 
reasons  of  silence. — The  silence  of  the  accused  may  spring 
from  such  a  variety  of  motives,  some  of  which  may  be  consist- 
ent with  innocence,  that  silence  alone  is  very  slight  evidence 
of  guilt;  and,  aside  from  the  inferences  which  may  arise  from 
the  attendant  circumstances,  should  be  received  with  caution.4 


1  Brown  v.  Com.,  86  Va.  935;  Com. 
v.  Braily,  134  Mass.  527;  Bookser  v. 
State,  26  Tex.  App.  593;  Franklin  v. 
State,  69  Ga.  36 ;  State  v.  Howard,  102 
Mo.  142 ;  State  v.  Pratt,  20  Iowa  267 ; 
Com.  v.  Harvey,  1  Gray  (Mass.)  487; 
Long  v.  State,  13  Tex.  App.  211 ;  Un- 
derlain on  Ev.,  §§79,  88a. 

2Ettinger  v.  Com.,  98  Pa.  St.  338; 
Surber  v.  State,  99  Ind.  71,73;  Con- 
way v.  State,  118  Ind.  482,  485;  Jones 
v.  State  (Ala.,  1896),  18  So.  Rep.  237; 
State  v.  Good,  132  Mo.  114,  33  S.  W. 
Rep.  790;  Moore  v.  State,  96  Tenn. 
209,  33  S.  W.  Rep.  1046;  People  v. 
Young,  108  Cal.  8,  41  Pac.  Rep.  281; 
Williford  v.  State  (Tex.,  1897),  37  S. 
W.  Rep.  761;  State  v.  Magoon,  68  Vt. 
289,  35  Atl.Rep.  310 ;  Loggins  v.  State,8 
Tex.  App.  434;  Com.  v.  Brown,  121 
Mass.  69 ;  Lawson  v.  State.  20  Ala.  65 ; 
Brister  v.  State,  26  Ala.  107, 116 ;  Slat- 
tery  v.  People,  76  111.  217;  Williams  v. 
State,  42  Ark.  35;  State  v.  Mullins, 
101  Mo.  514 ;  State  v.  Smith,  30  La.  An. 
457;  State  v.  Carroll,  30  S.  Car.  85.  If 
a  confession  is  inadmissible  because 
the  accused  was  not  cautioned,  or  be- 
cause he  was  under  duress,  his  silence 
ought  in  like  circumstances  to  be  re- 
fused. Fulcherv.  State,  28  Tex.  App. 
465,  473 ;  Nolen's  Case,  14  Tex.  App. 
474. 


3  Wharton  thus  broadly  and  liber- 
ally states  this  rule  in  Cr.  Ev.,  8th 
ed.,  §679.  "If  A.,  when  in  B.'s  pres- 
ence and  hearing,  makes  statements 
which  B.  listens  to  in  silence,  inter- 
posing no  objection,  A.'s  statement 
may  be  evidence  against  B.,  whenever 
B.'s  silence  is  of  such  a  nature  as  to 
lead  to  the  inference  of  assent."  In 
Com.  v.  Kenney,  12  Met.  (Mass.)  235, 
the  court  says :  "The  admissibility  of 
silence  depends  on  whether  he  hears 
and  understands  the  statement  and 
comprehends  its  meaning;  whether 
the  truth  of  the  facts  embraced  in  this 
statement  is  within  his  own  knowl- 
edge ;  whether  he  is  in  such  a  situation 
that  he  is  at  liberty  to  make  a  reply. 
*  *  *  If  made  in  the  course  of  any  ju- 
dicial hearing,  he  could  not  interfere 
and  deny  the  statement ;  it  would  be 
to  charge  the  witness  with  perjury 
and  inconsistent  with  decorum  and 
the  rules  of  law  *  *  *  or  if  he  is  re- 
strained by  fear,  or  by  doubts  of  his 
rights;  by  a  belief  that  his  security 
will  be  promoted  by  his  silence."  See, 
also,  Kelley  v.  People,  55  N.  Y.  565, 
574.  It  is  for  the  court  to  determine 
whether  the  proceedings  are  judicial. 
People  v.  Willett,  92  N.  Y.  29,  33. 

4Underhill  on  Ev.,  p.  112. 


§123 


CONSCIOUSNESS    OF    GUILT. 


If,.-, 


The  accused  may  always  show  these  circumstances,  and,  if 
he  shall  show,  to  the  satisfaction  of  the  court,  that  his  silence 
was  caused  hy  reasons  or  prompted  hy  motives  consistent 
with  his  innocence,  the  accusatory  statements  and  his  silence 
should  he  disregarded.  Thus,  he  may  show  his  silence  was 
caused  by  threats  ;!  that  the  statements  made  did  not  implicate 
him  f  that  he  had  or  supposed  he  had  no  right  to  reply,3  as 
when  the  accusations  were  made  in  a  judicial  or  quasi- judicial 
proceeding,4  as  a  coroner's  inquest  ;5  that  he  had  promised  to  be 
silent  under  accusations  made  at  a  family  council;6  and  gener- 
ally that,  under  the  circumstances,  no  oral  reply  would  have 
been  either  natural,  proper  or  expedient.7 

Upon  the  question  whether  the  silence  of  the  accused  under 
accusations  of  crime  made  in  his  presence  while  under  arrest 
or  in  custody,  but  not  made  in  a  judicial  proceeding  or  investi- 
gation, where  it  would  have  been  improper  for  him  to  speak,  is 
admissible,  the  cases  are  inharmonious.  Some  cases  hold 
that  the  mere  fact  of  the  accused  being  in  custody  or  under 
arrest  excludes  any  inference  of  acquiescence  in  others'  state- 
ments from  silence,  though  he  had  a  right  to  speak.8  But  it 
may  be  noted  that  it  has  never  been  expressly  held  that  the 
fact  that  the  accused  is  under  arrest  excludes  evidence  of  his 


1  State  v.  Flanagin,  25  Ark.  92. 
2Loggins  v.  State,  8  Tex.  App.  434. 

3  Com.  v.  Kenney,  12  Mete.  (Mass.) 
235. 

4  Bell  v.  State,  93  Ga.  557,  19  S.  E. 
Rep.  244;  Kelley  v.  People,  55  N.  Y. 
565,  571 ;  Cornstock  v.  State,  14  Neb. 
205;  Burrill  on  Cir.  Ev.,  p.  482.  The 
refusal  by  defendant  to  testify  at  a  pre- 
liminary examination  can  not  be 
proved  against  him.  Broyles  v.  State, 
47  Ind.  251,  253. 

5  State  v.  Mullins,  101  Mo,  514;  Peo- 
ple v.  Willett,  92  N.  Y.  29. 

6Slattery  v.  People,  76  111.  217. 
7  "Declarations  made  in   the  pres- 
ence of  a  party  to  which  he  makes  no 


reply  are  sometimes  competent,  as 
equivalent  to  a  tacit  admission  by 
him.  This  depends  on  whether  he 
heard  and  understood  them,  whether 
he  is  at  liberty  to  reply,  whether  he 
is  in  custody,  or  under  restraint  or 
duress,  and  whether  the  statements 
are  made  by  such  persons  and  under 
such  circumstances  as  naturally  call 
for  a  reply."  Com.  v.  Brailey,  134 
Mass.  527,  530. 

8  State  v.  Diskin,  34  La.  An.  919, 
921  ;  Com.  v.  Kenney,  12 Mete.  (Mass.) 
235;  Com.  v.  McDermott,  123  Mass. 
440;  Com.  v.  Walker,  13  Allen  (Mass.) 
570;  Gardner  v.  State  (Tex.,  1896), 
34  S.  W.  Rep.  945. 


156  CRIMINAL  EVIDENCE.  §  124 

acts  and  conduct  other  than  mere  silence.1  On  the  other  hand, 
where  the  accused  was  identified  in  jail,2  or  in  a  station-house 
immediately  after  his  arrest,3  or  on  being  brought  before  a 
magistrate  in  his  private  office,  after  the  preliminary  examina- 
tion, solely  for  identification,4  it  was  held  that,  as  it  would 
have  been  proper  for  him  to  speak,  his  silence  was  admissible. 
The  statements  identifying  a  person  under  such  circumstances, 
though  made  to  a  police  officer  and  not  addressed  directly  to  the 
accused,  so  far  concern  the  latter,  that  they  challenge  him  to 
assert  his  innocence,  and  his  assertion  of  this  fact  would  be 
both  natural  and  proper.5 

The  silence  of  the  accused  is  not  competent  unless  it  shall 
clearly  appear  that  the  witness  called  to  prove  it  would  have 
heard  a  response  had  any  been  made.6  He  may  be  asked  if  he 
would  have  heard  the  defendant  speak,  if  he  had  said  any- 
thing.7 • 

§  124.  The  accusatory  assertion  or  question. — The  assertion 
should  be  directly  or  indirectly  relevant  to  the  guilt  of  the 
accused.  It  must  refer  to  matters  upon  which  he  is  likely  to 
be  informed.8 

Every  sane  man  is  in  a  position  to  deny  or  affirm  statements 
regarding  his  own  acts.  But  it  is  both  unfair  and  absurd  to 
construe  his  silence  as  respects  other  men's  acts,  of  which, 
probably,  he  had  no  knowledge,  as  an  affirmance  or  approval 
of  them,  or  of  any  inference  which  may  be  drawn  therefrom.9 

1  Fulcherv.  State,  28  Tex.  App.  465,  band,  that  he  had  told  her  so,  and 
472;  Cordova  v.  State,  6  Tex.  App.  had  told  her  he  would  kill  her  too,  if 
207;  Greenfields.  People,  85  N.  Y.  75.     she  revealed  the  crime,  made  in  de- 

2  Ettinger  v.  Com.,  98  Pa.  St.  338.        fendant's  presence,  to  which  he  re- 
8Kelleyw.  People,  55  N.  Y.  565,  573;     plied  that  he  would  answer  to  the 

Ackerson  v.  People,  124  111.  563.  magistrates,  may  be  proved  by  any 

4  State  v.  Suggs,  89  N.  Car.  527,  530.  one  who  heard  them.     Such  charges 

5  Kelley  v.  People,  55  N.  Y.  565,  575.  clearly  call  for  a  prompt  denial.    Mil- 

6  Williams  v.  State,  42  Ark.  380.  ler  v.  State,  68  Miss.  221,  8  So.  Rep. 

7  Maynard  v.  People,  135  111.  416,  25  273. 

N.  E.  Rep.  740.  9Grigsby  v.  State,  4  Baxt.  (Tenn.) 

8  Accusations  by  the  wife  of  a  man,  19;  Kelley  v.  People,  55  N.  Y.  565. 
whom  defendant  is  alleged  to  have  Hence,  the  admissions  of  the  thief 
killed,  that  he  had  killed  her  hus-  not  made  in  the  presence  of  the  de- 


§124 


CONSCIOUSNESS    OF    GUILT. 


157 


The  accusing  declaration  or  question  is  not  evidence  because 
of  the  veracity,  credibility  or  competency  of  its  author.  The 
assent  of  the  accused  makes  it  admissible,  the  statement  being 
put  in  his  mouth  by  the  assent  implied  in  his  silence,  and 
because  it  contains  facts  which  he  was  called  upon,  but  failed, 
to  deny.1  The  incompetency  of  the  person  who  makes  the 
accusation  as  a  witness  against  the  accused  will  not  keep  out 
his  statement.2  A  witness  may  testify  that  the  declaration 
was  made  in  the  presence  of  the  accused.  He  will  not  be  per- 
mitted, however,  to  state  his  opinion  that  the  accused  must 
have  heard  it,  for  that  is  not  for  the  witness  to  determine.3 
The  cases  are  not  harmonious  upon  the  mode  of  proving  that 
the  accused  heard  and  understood  the  declaration,  or  whether 
the  court  or  jury  are  to  determine  these  facts. 

On  the  one  hand  it  is  affirmed  that  the  facts  that  he  heard  and 
understood  may  be  inferred  by  the  jury  from  evidence  that 
the  statement  was  made  in  his  physical  presence,  or  from 
his  nearness  and  attitude  as  a  listener.4  On  the  other,  it  is 
held  that  this  is  not  enough,  and  that  affirmative  evidence 
is  required  to  show  prima  facie  to  the  satisfaction  of  the  court 
that  the  attention  of  the  accused  was  attracted,  and  that  he  did 
actually  and  distinctly  hear  and  understand,  before  the  state- 
ment shall  be  permitted  to  go  to  the  jury  as  his  admission.8 
If  it  appears  indubitably  that  the  accused  was   asleep,6  or  was 

fendant  are  not  receivable  against  the 
latter  on  the  trial  of  an  indictment 
for  receiving  stolen  goods.  Dye  v. 
State,  130  Ind.  87 ;  29  N.  E.  Rep.  771 ; 
Reilley  ».  State,  14  Ind.  217. 

•Dramwright  v.  State,  29  Ga.  430; 
State  v.  Talmage,  17  S.  W.  Rep,  990, 
107  Mo.  543.  An  implicating  letter, 
written  by  a  person  not  produced,  is 
admissible  against  the  accused,  though 
neither  the  signature  of  the  writer 
nor  the  truth  of  the  accusation  is 
proved,  if  defendant  refuses  to  deny 
or  explain  it.  People  v.  Lewis,  62 
Hun  622. 

2  People  v.  McCrea,  32  Cal.  98; 
Richards  v.  State,  82  Wis.  172,  51  N. 
W.  Rep.  652. 


3  People  v.  Holfelder,  5  N.  Y.  Crim. 
Rep.  179. 

4  State  v.  Perkins,  3  Hawks  (N.  Car.) 
377 ;  Com.  v.  Galavan,  9  Allen  (Mass.) 
271 ;    Hall  v.  State,    102  Ind.  317,  321 
Com.   v.  Brailey,  134  Mass.  527,  530 
Com.   v.   Sliney,    126    Mass.   49,   50 
Richards  v.  State,  82  Wis.  172. 

5  Hall  v.  State,  132  Ind.  317;  31  N. 
E.  Rep.  536,  537;  Long  v.  State,  13 
Tex.  App.  211 ;  Williams  v.  State,.  42 
Ark.  35;  Jones  v.  State,  65  Ga.  147, 
150;  People  v.  Ah  Yute,  54  Cal.  89; 
Rose  v.  State,  13  Ohio  Cir.  Ct.  Rep. 
342,  7  Ohio  Dec.  226. 

6  Lanergan  v.  People,  39  N.  Y.  39. 


158  CRIMINAL  EVIDENCE.  §  124 

unconscious  from  intoxication  or  otherwise,  so  that  he  could 
not  hear  or  understand,  his  silence  is  not  competent.1 

1  It  seems  that  if  the  accused,  though  if  he  did,  in  fact,  assent  by  silence, 

physically  present,  was  intoxicated,  State  v.  Perkins,  3  Hawks'   (N.  Car.) 

it  is  for  the  jury   to  decide  if  he  was  Law  377,  378. 
qualified  to  hear  and  understand,  and 


CHAPTER  XII. 


CONFESSIONS. 


§125.   Definition  and  classification. 

126.  Voluntary  character  of  confes- 

sions. 

127.  Burden  of  proof  to  show  vol- 

untary character. 

128.  Circumstances     under    which 

confession     becomes    invol- 
untary. 

129.  Confessions  made  while  under 

arrest. 

130.  Effect  of    cautioning   the   ac- 

cused. 

131.  Confessions  under  oath. 

132.  Confessions  taken  at  the  pre- 

liminary examination. 

133.  Mode  of  proving  a  confession 

made  at  the  preliminary  ex- 
amination. 

134.  Confessions   of    persons  asso- 

ciated in  a  conspiracy. 

135.  Artifice  or  deception  used. 

136.  Confessions  by  intoxicated  per- 

sons. 


§  137.   Admissions  receivable  though 
involuntary. 

138.  When  facts  discovered  admit 

parts  of  an  involuntary  con- 
fession. 

139.  Confessions  procured  by  per- 

sons in  authority. 

140.  Confession  need  not  be  spon- 

taneous. 

141.  Confessions  made  by  signs  or 

gestures. 

142.  Confessions  of  treason. 

143.  Confessions    made   by   young 

children. 

144.  Judicial  confessions  —  Plea  of 

guilty. 

145.  Confessions  of  persons  not  in- 

dicted. 

146.  The  value  of  confessions  as  ev- 

idence. 

147.  Mode  of  proof — When  corrob- 

oration is  required. 


§  125.  Definition  aud  classification. — Confessions  are  ad- 
missions, made  at  any  time  by  a  person  accused  of  crime, 
stating  or  suggesting  the  inference  that  he  committed  or  par- 
ticipated in  the  commission  of  that  crime.  They  may  be  either 
judicial  or  extra-judicial.  The  former  are  those  made  either  at 
the  preliminary  examination,  or  at  the  trial  of  the  accused. 
Extra-judicial  confessions  are  made  out  of  court,  and  though 
commonly  spoken  of  as  including  not  only  express  oral  and 
written  admissions  of  guilt,  but  also  all  actions  from  which  guilt 

(159) 


160 


CRIMINAL    EVIDENCE. 


§  126 


may  be  inferred,  the  word  is  used  in  this  chapter  as  describing 
only  the  former  class  of  admissions. 

A  confession,  to  be  receivable  as  such,  must  be  an  admission 
by  the  accused  that  he  is  guilty  of  the  precise  crime  with  which 
he  is  charged.  The  prisoner's  declaration  that  he  is  guilty  of 
other  similar  crimes,  while  competent  to  show  the  existence  of 
a  criminal  intent,  never  amounts  to  a  confession  of  the  crime 
for  which  he  is  indicted,  nor  do  the  rules  and  principles  regu- 
lating confessions  apply  to  such  declarations.1 

§  126.  Voluntary  character  of  confessions. — Before  a  con- 
fession, either  judicial  or  extra-judicial,  can  be  received  as 
such,  it  must  first  be  shown  that  it  was  in  every  respect  freely 
and  voluntarily  made.2  A  basis  must  be  laid  for  the  admis- 
sion of  the  confession  by  ascertaining  whether  the  prisoner 
had  been  told  that  it  would  be  advantageous  for  him  to  con- 
fess, or  whether  any  threat  or  promise  had  been   made  to  him 


1  Com.  v.  Call,  21  Pick.  (Mass.)  515 ; 
Hardtke  v.  State,  67  Wis.  552,  558; 
People  v.  Hickman,  113  Cal.  80,  45 
Pac.Rep.175.  Thus  an  offer  to  bribe  the 
district  attorney,  coupled  with  an  ad- 
mission of  having  committed  an  inde- 
cent assault,  can  not  be  construed  as 
a  confession  of  the  crime  of  rape. 
Hardtke  v.  State,  67  Wis.  552,  558. 
Declarations  by  the  accused  of  an  in- 
tention to  commit  separate  offenses 
from  that  charged  are  not  confessions. 
Kinchelow  v.  State,  5  Humph.  (Tenn.) 
9,  12.  If  the  admission  by  defendant 
of  the  commission  of  other  crimes  than 
that  charged  is  so  inseparably  con- 
nected with  the  confession  of  the  crime 
for  which  he  is  on  trial  that  it  can  not 
be  severed,  it  may  be  received,  the  jury 
being  warned  that  it  is  in  no  sense 
evidence  of  the  crime  charged.  Gore 
v.  People,  162  111.  259,  44  N.  E.  Rep. 
500. 

2  People  v.  Ward,  15  Wend.  (N.  Y.) 
231 ;  Com.  v.  Taylor,  5  Cush.  (Mass.) 
605.    610:    Com.    v.    Morey,    1   Gray 


(Mass.)  461,  463;  Com.  v.  Preece,  140 
Mass.  276,  277;  Collins  v.  State,  24 
Tex.  App.  141 ;  State  v.  Chambers,  45 
La.  An.  36,  38;  Ross  ».  State,  67  Md. 
286,  289;  Nicholsons.  State,  38  Md. 
140,  153;  People  v.  Taylor,  93  Mich. 
638,  641 ;  Smith  v.  State,  88  Ga.  627, 
629;  State  v.  Carson,  36  S.  Car.  524, 
531,  532;  State  v.  Jones,  54  Mo.  478, 
479;  State  v.  Kinder,  96  Mo.  548;  Peo- 
ple v.  Soto,  49  Cal.  67  ;  People  v.  Fox, 
3  N.  Y.  Supp.  359;  People  v.  Dea- 
cons, 109  N.  Y.  374;  Fife  v.  Com.,  29 
Pa.  St.  429,  436;  Alfred  v.  State,  37 
Miss.  296,  306;  State  v.  Chisenhall, 
106  N.  Car.  676,  680 ;  Walker  v.  State, 
136  Ind.  663,  668.  See  also  Underbill 
on  Ev.,  §  89.  "Voluntary  is  not  al- 
ways used  in  contradistinction  to  com- 
pulsory. In  many  cases  voluntary 
means  proceeding  from  the  spontane- 
ous operation  of  the  party's  own  mind, 
free  from  the  influence  of  any  extra- 
neous disturbing  cause."  People  v. 
McMahon,  15  N.  Y.  384,  386. 


§127 


CONFESSIONS. 


161 


in  connection  with  the  crime,  which  was  sufficient  to  make 
the  confession  involuntary.  If  the  confession  is  the  result  of 
the  pressure  of  a  promise  of  some  benefit,  or  was  procured  by 
a  threat,  it  will  be  excluded.  In  other  words,  the  fact  that  ac- 
cused was  influenced  by  hope  or  fear  to  make  a  confession  is 
regarded  as  creating  so  strong  a  presumption  that  the  confes- 
sion is  untrue,  that  the  law  rejects  it  as  worthless. 

The  preliminary  question,  was  the  confession  voluntary? 
bearing  directly  upon  its  competency  as  evidence,  must  be,  ac- 
cording to  the  majority  of  the  cases,  decided  by  the  court  as  a 
mixed  question  of  law  and  fact.1  But  numerous  authorities 
hold  that  in  case  a  conflict  of  evidence  or  room  for  doubt  exists 
as  to  the  voluntary  nature  of  the  confession,  the  court  ought 
to  submit  it  to  the  jury,  and  if  they  believe  from  all  the 
evidence  that  it  was  induced  by  threats  or  promises,  or  was 
not  free  and  voluntary,  they  must  reject  it  from  their  consider- 
ation, though  they  may  believe  it  to  be  true.2 

§  127.    Burden  of  proof  to  show  voluntary  character. — The 

cases  are  not  harmonious  upon  the  question  whether  the  prose- 


1  Hank  v.  State  (Ind.,  1897) ,  46  N.  E. 
Rep.  127;  Ford  v.  State  (Miss.,  1897), 
21  So.  Rep.  524;  Hunter  v. State  (Miss., 
1897),  21  So.  Rep.  305 ;  Palmer  v.  State, 
136  Ind.  393,  396;  Brown  v.  State,  71 
Ind.  470,  473;  State  v.  Patterson,  73 
Mo.  695,  706;  State  v.  Kinder,  96  Mo. 
548,  550;  Brister  v.  State,  26  Ala.  107, 
129;  Simmons  v.  State,  61  Miss.  243, 
257;  Redd  v.  State,  69  Ala.  255,  259; 
People  v.  Fox,  3  N.  Y.  Supp.  359,  24  N. 
E.  Rep.  923;  Thomas  v.  State,  84  Ga. 
613,618;  Ellis  v.  State,  65  Miss.  44; 
People  v.  Howes,  81  Mich.  396,  401; 
Burton  v.  State  (Ala.,  1896),  18  So. 
Rep.  284,  and  Underhill  on  Ev., 
§  89.  And  the  court  may  and  perhaps 
should,  on  request,  examine  the  wit- 
nesses on  this  point,  out  of  the  hear- 
ing of  the  jurors.  Anderson  r.  State, 
72  Ga.  98;  Kinder  v.  State,  96  Mo. 
548,550;  States.  Kelly,  28  Ore.  225, 
11-Cr.  Ev. 


42  Pac.  Rep.  217;  Holland  v.  State 
(Fla.,  1897),  22  So.  Rep.  298.  It  has 
been  held  error  not  to  determine  this 
before  the  confession  is  submitted  to 
the  jury.  Smith  v.  State,  88  Ga.  627, 
629;  Ellis  v.  State,  65  Miss.  44,  47; 
King  v.  State,  40  Ala.  314;  Brown  v. 
State,  71  Ind.  470,  473 ;  Nolen  v.  State, 
8  Tex.  App.  585;  Com.  v.  Culver,  126 
Mass.  464,  466. 

2  Com.  v.  Preece,  140  Mass.  276 ;  Com. 
v.  Piper,  120  Mass.  185, 188;  People  v. 
Barker,  GO  Mich.  277,  298,  27  N.  W. 
Rep.  539;  Stallings  v.  State,  47  Ga. 
572;  Thomas  v.  State,  84  Ga.  613,  618; 
People  v.  Kurtz,  42  Hun  (N.  Y.)  335, 
345;  People  v.  Howes,  81  Mich.  396, 
401 ;  Wilson  v.  United  States,  162  U. 
S.  613;  People  v.  Cassidy,  133  N.  Y. 
612.  Contra,  State  v.  Sanders,  84  N. 
Car.  728;  Wallace  v.  State,  28  Ark. 
531. 


162 


CRIMINAL    EVIDENCE. 


§  128 


cution  has  the  burden  of  proof  to  show  the  free  and  voluntary 
character  of  the  confession.  Many  of  the  cases  sustain  the 
affirmative  of  this  proposition,  and  require  the  state  to  show 
by  some  evidence  that  the  confession  was  freely  and  voluntarily 
made.1  Other  authorities  sustain,  at  least  in  the  absence  of 
evidence  to  the  contrary,  the  very  reasonable  theory  that  a  con- 
fession, like  every  act  or  utterance  which  is  the  result  of  human 
agency,  is  presumed  to  have  been  voluntary  until  the  contrary 
is  shown.2  This  view  casts  the  burden  of  proving  that  the 
confession  was  involuntary  upon  the  accused.  In  any  case  it 
is  his  right  to  show  by  preliminary  evidence  that  the  confession 
was  not  voluntary,  and  it  is  the  duty  of  the  court,  in  determin- 
ing the  competency  of  the  confession,  not  only  to  consider  the 
evidence  for  the  state,  but  the  evidence  elicited  by  the  accused 
in  his  favor  as  well.3 

A  refusal,  before  it  is  admitted,  to  allow  counsel  for  the  pris- 
oner to  cross-examine  the  witness  as  to  the  voluntary  character 
of  the  confession;4  or  to  allow  the  accused  to  testify,  and  to  ex- 
plain his  mental  condition  when  it  was  made;5  or  to  show  by 
the  evidence  of  others  that  it  was  improperly  obtained,  is  re- 
versible error.6 

§  128.  Circumstances  under  which  confession  becomes  in- 
voluntary.— It  is  very  difficult,  if  not  impossible,  to  lay  down 
any  general  rule  by  which  the  amount  or  degree  of  duress  or 
improper  influence  which  will  destroy  the  voluntary  character 
of  a  confession  can  be  regulated  or  measured.7 


1  People  v.  Soto,  49  Cal.  67;  People 
v.  Swetland,  77  Mich.  53,  60;  Nichol- 
son v.  State,  38  Md.  140,  153;  Barnes 
v.  State,  36  Tex.  356,  363;  State  v 
Johnson,  30  La.  An.  881;  Amos  v 
State,  83  Ala.  1,  3  So.  Rep.  749. 

2  Rufer  v.  State,  25  Ohio  St.  464, 470 
State  v.  Patterson,  73  Mo.  695,  705 
People  v.  Cassidy,  133  N.  Y.  612,  613 
State  v.  Howard,  35  S.  Car.  197, 14  S.  E 
Rep.  481 ;  Williams  v.  State,  19  Tex 
App.  276;  Com.  v.  Culver,  126  Mass 
464,  465 ;   Eberhardt  v.  State,  47  Ga 


598,  608;   State  v.  Davis,  34  La.  An. 
351,  353. 

3  State  v.  Fidment,  35  Iowa  541. 

4  Rufer  v.  State,  25  Ohio  St.  464, 471 ; 
State  v.  Miller,  42  La.  An.  1186,  1188. 

5  Simmons  v.  State,  61  Miss.  243,  258. 

6  Com.  v.  Culver,  126  Mass.  464,  466, 
467.  That  the  defendant  may  himself 
testify  to  the  involuntary  character  of 
the  confession,  see  State  v.  Kinder,  96 
Mo.  548,  551. 

7  In  Hopt  v.  Utah,  110  IT.  S.  574,  the 
court  savs:      "The  admissibilitv   of 


§129 


CONFESSIONS. 


161 


The  statement  that  a  confession  which  has  been  extorted  by 
threats  or  procured  by  promises  is  not  voluntary,  and  hence  is 
inadmissible  as  likely  to  be  untrue,  is  not  difficult  to  under- 
stand. But  it  is  very  difficult  to  ascertain  what  language  used 
to  the  prisoner  would,  under  the  particular  circumstances  of 
each  case,  constitute  such  a  threat  or  promise.  The  sex,  age, 
disposition,  education  and  previous  training  of  the  prisoner 
are  elements  to  be  considered  in  determining  whether  the  con- 
fession was  or  wTas  not  free  and  voluntary.  For  it  is  well  known 
that  a  determined,  courageous  and  experienced  man  is  not  so 
susceptible  to  threats,  or  to  promises  of  immunity,  as  a  feeble 
woman,  or  a  person  of  weak  intellect  or  will  power.1 

§  129.  Confessions  made  while  under  arrest. — The  mere  fact 
that  the  defendant  was  under  arrest,  or  was  in  the  charge  of 
armed  police  officers  when  he  made  his  confession,2  or  was 
handcuffed  and  chained,3  or  tied,4  (if  he  is  not  tied  in  such  a 
manner  as  to  produce  pain  or  extort  a  confession),  or  in  prison,5 


such  evidence  so  largely  depends  upon 
the  special  circumstances  connected 
with  the  confession  that  it  is  difficult, 
if  not  impossible,  to  formulate  a  rule 
that  will  comprehend  all  cases,  as  the 
question  is  necessarily  addressed  in 
the  first  instance  to  the  judge,  and 
since  his  discretion  must  be  controlled 
by  all  attendant  circumstances,  the 
courts  have  wisely  forborne  to  mark 
with  absolute  precision  the  limits  of 
admission  and  exclusion." 

1  Biscoe  v.  State,  67  Md.  6,  7. 

2  Cox  v.  People,  80  N.  Y.  500,  515; 
Willis  v.  State,  93  Ga.  208,  19  S.  E. 
Rep.  43;  People  v.  Rogers,  18  N.  Y.  8; 
Peoples.  Druse,  103  N.  Y.  655,  656; 
Allen  v.  State,  12  Tex.  App.  190;  State 
v.  Sopher,  70  Iowa  494,  497 ;  Pierce  v. 
United  States,  160  IT.  S.  355,  16  S.  Ct. 
321;  State  v.  Jones,  47  La.  An.  1524, 
18  So.  Rep.  515;  Jackson  v.  Com. 
(Ky.,  1897),  38  S.  W.  Rep.  422;  State 
v.  McClain  (Mo.,  1897),  38  S.  W.  Rep. 


906 ;  Williams  v.  State  (Tex.,  1897),  38 
S.  W.  Rep.  999. 

3  State  v.  Whitfield,  109  N.  Car. 
876,  877.  Contra,  Nolen  v.  State,  14 
Tex.  App.  474,  480. 

4  State  v.  Rogers.  112  N.  Car.  874, 
876, 17  S.  E.  Rep.  297;  State  v.  Patter- 
son, 73  Mo.  695,  707. 

5  Com.  v.  Smith,  119  Mass.  305,  311 
People  v.   Rogers,   18  N.   Y.   9,   14 
Murphy  v.  People,  63  N.  Y.  590,  597 
Ward  v.   People,  3  Hill  (N.  Y.)  395 
Cox  v.  People,  80  N.  Y.  500,  515,  19 
Hun  (N.  Y.)  430,  436.     If  by  statute 
a  confession  is  inadmissible  because 
at  the  time  the  defendant  is  in  jail,  it 
is  immaterial  that  he  is  confined  for 
another  crime  than  that  then  being 
tried.     Neiderluck   v.  State,   21  Tex. 
App.  320,  328.    The  fact  that  the  pris- 
oner was    held    without  process,   or 
otherwise  in  illegal  custody,  does  not 
exclude     the     confession.     Balbo    v. 
People,  80  N.  Y.  484,  499. 


104  CRIMINAL  EVIDENCE.  §  130 

will  not  make  a  confession  involuntary.  But  the  confession 
of  a  prisoner,  a  boy  eighteen  years  of  age,  made  while  he  was 
in  the  hands  of  a  large  armed  mob  which  had  placed  a  rope 
about  his  neck,  was  rejected  as  involuntary.1 

§  130.  Effect  of  cautioning  the  accused. — Cautioning  the  ac- 
cused that  what  he  may  say  will  be  committed  to  writing  and 
be  used  on  his  trial  as  evidence  against  him,  does  not  render 
his  confession  involuntary.2  This  caution  is  usually  given  to 
the  prisoner,  but  while  it  is  very  proper  that  he  should  be 
warned,  on  grounds  of  humanity  and  justice,  in  order  that  he 
may  not  be  entrapped  into  testifying  against  himself,  the 
warning  or  caution  is  not,  in  the  absence  of  statute,  absolutely 
essential  to  be  given.3  If  it  plainly  appear  that  a  confession 
is  voluntary,  it  is  not  necessary,  at  least  in  the  absence  of  sus- 
picious circumstances,  to  prove  that  from  the  moment  of  the 
prisoner's  arrest  to  that  of  his  confession  no  improper  induce- 
ment was  offered.4  A  voluntary  confession  will  be  received, 
though  it  may  appear  that  immediately  after  his  apprehension 
the  accused  had  been  threatened,  but  without  effect,  in  order 
to  procure  a  confession.5  It  must  be  shown  that  the  promise 
or  threat  has  been  withdrawn. 

Even  though  an  original  confession  may  have  been  obtained 
by  such  means  as  will  exclude  it,  a  subsequent  confession  of  the 
same  or  of  like  facts  may  and  should  be  admitted,  if  the  court 
shall  believe  from  the  length  of  time  intervening,  or  from  any 
other  facts  in  evidence,  that  the  influence  has  been  removed.6 


1  State  v.  Revells,  34  La.  An.  381,     State  (Tex.,  1897),  38  S.  W.  Rep.  169. 
384.  The  silence  of  the  accused  after  the 


2  Reg.  v.  Holmes,  1  0.  &  K.  248 
Reg.  v.  Attwood,  5  Cox  C.  C.  322,  323 
Rizzolo  v.   Com.,   126  Pa.  St.  54,  72 


caution  can  not  be  used  against  him. 
Kirby  v.  State,  23  Tex.  App.  13,  22. 
4  Hopt  v.  Utah,  110  IT.  S.  574,  584. 


United   States  v.  Kirkwood,  5  Utah  5  McAdory   v.    State,   62   Ala.   154; 

123;  Maples  v.   State,  3  Heisk.  408,  State  v.  Chambers,  39  Iowa  179;  Walk- 

411,  413.  er  v.  State,  7  Tex.  App.  245,  263 ;  State 

3  Reg.  v.  Arnold,  8  C.  &  P.  621,  622 ;  v.  Jones,  54  Mo.  478,  480. 

Simon  v.  State,  36  Miss.  636,  639 ;  State  6  Guild's  Case,  ION.  J.  L.  163 ;  Simon 

^.Workman,  15  S.  Car.  540,  545;  Com.  v.  State,  36  Miss.  636,  639;    Hardy  v. 

v.  Mosler,  4  Barr.  (Pa.)  264 ;  White  v.  United  States,  3  App.  D.  C.  35 ;  State 


§131 


CONFESSIONS. 


165 


The  controlling  influence  of  the  threat  or  promise  under  which 
the  prior  confession  was  made  is  presumed  to  continue  until 
its  cessation  is  affirmatively  shown.1  This  presumption  must 
be  overcome  before  the  later  confession  can  be  received  as  evi- 
dence. And  evidence  to  overcome  or  rebut  it  must  be  clear, 
strong  and  satisfactory.2 

§  131.  Confessions  under  oath. — The  admissions  or  incrim- 
inating statements  of  the  accused  are  not  to  be  rejected  solely 
because  they  were  made  under  oath.  A  distinction  is  made  be- 
tween declarations  made  under  oath  before  the  accused  was 
arrested,  or  before  suspicion  attached  to  him,  and  declarations 
made  subsequently  to  his  arrest.  The  former,  though  in  fact 
confessions,  are  not  rejected.  Thus  the  testimony  of  the  ac- 
cused, if  it  was  voluntarily  given  as  a  witness  on  a  prior  trial 
of  himself,3  or  another  person  for  the  crime  with  which  he  is 
now  charged,  may  be  used  against  him.4 

A  different  rule  is  applicable  to  sworn  statements  made  after 
the  accused  is  under  suspicion.  Generally  the  accused  is  not 
sworn  upon  the  preliminary  examination.  If  by  mistake  his 
statement  is  taken  under  oath  it  will  be  rejected  if  offered  as  a 
confession,  upon  the  ground  that  its  free  and  voluntary  char- 


ts. Carr,  37  Vt.  191, 195 ;  United  States 
v.  Nardello,  4  Mackey  503;  State  v. 
Hash,  12  La.  An.  895,  896. 

1  State  v.  Guild,  10  N.  J.  L.  163; 
State  v.  Lowhorne,  66  N.  Car.  638; 
State  v.  Hash,  12  La.  An.  895,  986; 
State  v.  Drake,  82  N.  Car.  592;  State 
v.  Brown,  73  Mo.  631 ;  Com.  v.  Knapp, 
10  Pick.  (Mass.)  477,  486;  Thompson 
v.  Com.,  20  Gratt.  (Va.)  724,  731; 
Com.  v.  Harman,  4  Pa.  St.  269;  Simon 
v.  State,  37  Miss.  288,  295;  Coffee  v. 
State,  25Fla.  501,  512;  State  v.  Redd, 
69  Ala.  255,  260;  State  v.  Jones,  54 
Mo.  478,  480. 

2  Porter  v.  State,  55  Ala.  95 ;  Com.  v. 
Cullen,  111  Mass.  435,  437;  State  v. 
Lowhorne,  66  N.  Car.  638;  State  v. 
Carr,  37  Vt.  191,  195,  and  see  Coffee 


v.  State,  25  Fla.  501,  512,  for  a  full  cita- 
tion of  cases.  It  is  sufficient  to  ex- 
clude the  latest  confession  if  it  may 
have  proceeded  from  prior  existing 
motives.  Com.  v.  Cullen,  111  Mass. 
435,  437. 

3  People  r.  McMahon,  15  N.  Y.  384, 
392;  Com.  v.  Reynolds,  122  Mass.  454, 
458;  Williams  v.  Com.,  29  Pa.  St.  102, 
110;  People  v.  Kelley,  47  Cal.  125; 
Dickerson  v.  State,  48  Wis.  288,  293 ; 
State  v.  Oliver,  55  Kan.  711. 

4  People  v.  McMahon,  15  N.  Y.  384, 
390;  Burnett  v.  State,  87  Ga.  622;  Peo- 
ple v.  Mitchell,  94  Cal.  550,  555;  Peo- 
ple v.  Gallagher,  75  Mich.  512,  525; 
Harris  v.  State  (Tex.,  1896),  36  S.  W. 
Rep.  88. 


1G6  CRIMINAL  EVIDENCE.  §  132 

acter  has  been  destroyed  by  adding  to  the  existing  embarrass- 
ments of  his  position,  the  apprehension  of  a  possible  punish- 
ment for  perjury.1 

The  rule  that  a  confession  by  the  accused  is  incompetent,  if 
given  under  oath,  is  applicable  to  those  very  numerous  cases  in 
which  a  person,  being  tried  upon  a  charge  of  homicide,  has  testi- 
fied as  a  witness  at  the  coroner's  inquest.  The  mere  fact  that  at 
the  time  of  the  inquest  he  was  suspected  of  the  homicide  will  not 
exclude  his  incriminating  statements  voluntarily  made.2  They 
may  be  subsequently  used  against  him  as  a  confession,  and  are 
to  go  to  the  jury  for  what  they  are  worth,  though  the  accused 
was  not  cautioned  that  they  might  be  used  against  him.  If, 
however,  he  is  under  arrest,  or  if  he  has  been  indicted,  or  for- 
mally charged  with  the  crime,  he  stands  in  the  position  of  a 
prisoner  on  trial.  He  is  then  entitled  to  the  same  privileges 
and  warning,  so  far  as  his  sworn  statement  is  concerned,  as  a 
prisoner  at  the  preliminary  examination.  He  can  not,  direct- 
ly or  indirectly,  be  compelled  to  testify  against  himself.3 

§  132.    Confessions  taken  at  the  preliminary  examination. 

— The  preliminary  examination  of  an  accused  person  has  for 
its  main  objects  the  perpetuation  of  the  testimony  against  him, 

People  v.   Gibbons,   43    Cal.  557;  7,  13;  People  v.  Mondon,  103  N.  Y. 

State  v.  Welch,  36  W.  Va.  690, 15  S.  E.  211,  214 ;  Clough  v.  State,  7  Neb.  320, 

Rep.  419;  Schoeffler  v.  State,  3  Wis.  340.    Cf.  People  v.  McMahon,  15  N.  Y. 

823,  839,  841;  United  States  v.  Basca-  384;  State  v.  O'Brien,  18  Mont.  1,  43 

dore,  2  Cranch  C.  C.  30,  and  see  Un-  Pac.  Rep.  1091.    But  where  he  volun- 

derhill  on  Evidence,  page  131.     But  tarily  appeared  and  was  properly  cau- 

the  confession  of  a  person  who  volun-  tioned,  it  was  held  otherwise  in  State 

tarily  goes  before  a   magistrate   and  v.  Leuth,5  Ohio  Cir.  Ct.  Rep.  94;  State 

confesses  will  be  received.     Peoples,  v.  Mullins,    101  Mo.   514;    Emery  v. 

McGloin,  91  N.  Y.  241,  246;  Com.  v.  State,  92  Wis.  146,  65  N.  W.  Rep.  848. 

Clark,  130  Pa.  St.  641,  650.  See  Underhill  on  Evidence,  §93.  And 

2  State  v.  David,  131  Mo.  380,  33  S.  what  the  accused  voluntarily  says  on 
W.  Rep.  28;  Wilson  v.  State,  110  Ala.  his  preliminary  examination,  as  when 
1,  20  So.  Rep.  415;  Jenkins  v.  State,  he  asks  for  the  aid  of  counsel  or  re- 
35  Fla.  737,  18  So.  Rep.  182.  quests  an  adjournment,  may,  though 

3  State  v.  Senn,  32  S.  Car.  392,  402 ;  not  amounting  to  a  confession  of  guilt, 
State  v.  Carroll,  85  Iowa  1,  51  N.  W.  be  proved  against  him  if  relevant  on 
Rep.  1159;  Hendrickson  v.  People,  10  his  trial.  State  v.  Fooks,  65  Iowa  196; 
N.  Y.  13 ;  Teachout  v.  People,  41  N.  Y.  Gonzales  v.  State,  12  Tex.  App.  657. 


§133  CONFESSIONS.  167 

the  ascertainment  if  he  shall  be  held  to  await  the  action  of  the 
grand  jury,  and  if  so,  whether  he  shall  be  admitted  to  bail. 
When  the  accused  is  brought  before  the  justice,  the  latter 
must,  as  soon  as  possible,  examine  the  witnesses  for  and 
against  him  under  oath.  The  accused  must  be  present  when 
this  evidence  is  received,  though  the  examining  magistrate 
may  exclude  all  witnesses  except  the  one  who  is  testifying. 
The  accused  may  be  sworn  at  his  own  request,  and  examined 
as  a  witness  in  his  own  behalf,  under  the  restrictions  which 
apply  to  the  examination  of  defendants  in  criminal  trials. 
He  should,  in  justice  to  himself,  be  informed  of  his  right  to 
refrain  from  testifying.  He  should  be  told  that  he  need  not 
answer  any  questions,  and  that  his  silence  or  express  refusal 
to  answer  incriminating  questions  can  not  be  used  against 
him  on  his  trial.  It  was  at  one  time  held  that  if  the  accused 
was  cautioned  that  what  he  said  might  or  would  be  used 
against  him  or  even  in  his  favor,  his  confession  subsequently 
made  was  inadmissible.1  This  is  no  longer  the  rule  where  the 
statutory  caution  is  given  to  the  prisoner.2  If  a  statute 
requires  that  the  accused  shall  be  informed  of  his  right  to 
waive  making  a  statement,  anything  he  may  say  will  be  inad- 
missible against  him  if  the  record  does  not  show  that  he  was 
warned. 8 

§  133.  Mode  of  proving  confessions  made  at  the  preliminary 
examination. — The  signature  of  the  accused  to  his  statement 
which  has  been  committed  to  writing  is  not  indispensable, 
unless  it  is  required  by  statute.4  But,  as  it  is  useful  as  a 
means  of  identification,  it  should  be  obtained  whenever  possi- 
ble. If  he  signs  the  writing  voluntarily  he  waives  all  objec- 
tions to  its  admission  as  evidence  (except,  perhaps,  the  objec- 

1  Reg.  v.  Drew,  8  C.  &  P.  140;  Rex  v.  s  State  v.  Hatcher,  29  Ore.  309,  44 
Hornbrook,  1  Cox  C.  C.  54,  55;  Reg.  Pac.  Rep.  584;  People  v.  Butler(Mich., 
v.  Farley,  1  Cox  C.  C.  76.  1897), 69  X.W.  Rep.  734 ;  Ford  v.  State, 

2  Rex  v.  Court,  7  C.  &P.486;  State  (Miss.,  1897),  21  So.  Rep.  524;  State 
v.  Leuth,  5  Ohio  Cir.  Ct.  94;  Com.  v.  v.  Melton  (N.  Car.,  1897),  26S.E.  Rep. 
Robinson,   165  Mass.  426;   43  N.   E.  933. 

Rep.  121;  Moore  v.  State  (Tex.,  1896),  4  Lambe's  Case,  2  Leach  Cr.  Law 
33  S.  W.  Rep.  971.  625,  629. 


L68 


CRIMINAL    EVIDENCE. 


§133 


tion  that  he  was  sworn),  and  this  is  so,  though  it  is  in  a 
Language  not  understood  by  him,  if  its  contents  were  trans- 
lated to  him.1 

The  writing  which  purports  to  contain  the  preliminary 
examination  of  the  accused  must  be  properly  identified.  If 
the  accused  has  not  signed  the  writing  at  all,  or  if  he  has  only 
affixed  his  mark  thereto,  it  must  appear  to  the  satisfaction  of 
the  court  (necessarily  by  parol  evidence)  that  it  was  read  to 
him  and  that  he  assented  to  or  acquiesced  in  it.2  The  record 
of  the  examination,  if  otherwise  admissible,  should  be  pro- 
duced as  the  best  evidence,3  and  when  produced,  it  is  conclu- 
sive of  the  fact  that  everything  material  that  was  said  or  done 
has  been  accurately  stated.4  But  when  an  informal  examina- 
tion only  has  been  had,  or  if  the  details  of  a  regular  and 
formal  examination  have  not  been  committed  to  writing,5  or 
if  the  record  is  inadmissible  because  of  a  lack  of  jurisdiction6 
apparent  on  its  face,  or  for  any  other  material  or  substantial 
reason,  parol  evidence  of  what  the  prisoner  voluntarily  said  on 
the  preliminary  examination  will  be  received.7  So,  too,  parol 
evidence  of  an  extra-judicial  confession  is  never  incompetent 
merely  because  the  judicial  examination  of  the  prisoner  was 
taken  down  in  writing,8  or  because  the  prisoner  himself  has 
committed  a  prior  confession  to  writing.9 


1  Com.  v.  Coy,  157  Mass.  200,  212,  32 
N.  E.  Eep.  4 ;  State  v.  Demareste,  41 
La.  An.  617. 

2  Harris  v.  State,  6  Tex.  App.  97; 
State  v.  Mullins,  101  Mo.  514;  State  v. 
Schmidt  (Mo.,  1897),  38  S.  W.  Rep. 
719. 

3  State  v.  Branham,  13  S.  Car.  389; 
Wright  v.  State,  50  Miss.  332,  335; 
TJnderhill  on  Ev.,  §§36,  146,  147,  232. 

4  Robinson  v.  State,  87  Ind.  292,  293. 

5  State  v.  Suggs,  89  N.  Car.  527,  530. 
6 See  TJnderhill  on  Ev.,  §232,  as  to 

presumptions  of  jurisdiction.  State 
v.  Hatcher,  29  Ore.  309,  44  Pac.  Rep. 
584;  Lneraw.  State  (Tex.,  1896),  32  S. 
W.  Rep.  898. 


7  Wright  v.  State,  50  Miss.  332,  335 ; 
Guy  v.  State  9  Tex.  App.  161 ;  Stevens 
v.  State  (Tex.,  1897),  38  S.  W.  Rep. 
167.  But  such  evidence  is  inadmissi- 
ble to  show  what  the  prisoner  said  if 
the  magistrate  states  that  he  refused  to 
say  anything.  The  record  can  not  be 
contradicted  by  parol.  Rex  v.  Wal- 
ter, 7  C.  &  P.  267. 

8  State  v.  Smith,  9  Houst.  588,  33  Atl. 
Rep.  441 ;   State  v.  Rover,  13  Neb.  21. 

9  State  v.  Head,  38  S.  Car.  258,  16 
S.  E.  Rep.  892;  State  v.  Leuth,  5  Ohio 
Cir.  Ct.  Rep.  94.  The  fact  that  the 
prisoner  desired  to  waive  a  prelim- 
inary examination  will  not,  if  he  has 
been  properly  cautioned,  render  any 


§134 


CONFESSIONS. 


169 


§  134.    Confessions  of  persons  associated  in  a  conspiracy. — 

A  confession  or  incriminating  statement  uttered  by  a  person 
engaged  with  others  in  a  conspiracy  to  commit  a  crime,  made 
in  the  prosecution  of  the  common  enterprise,  and  during  its 
existence,  is  admissible  against  any  or  all  of  those  associated 
together.1  When  the  common  undertaking  is  consummated 
or  abandoned  the  community  of  interest  ceases.  A  confession 
of  any  participant  made  thereafter  is  receivable  only  against 
him.  Usually  the  existence  of  the  conspiracy  must  be  proved 
before  the  confession  will  be  received.  But  sometimes, 
though  this  is  not  the  general  rule,  the  confession  may  be 
received  as  evidence  on  a  promise  by  the  prosecution  to  estab- 
lish the  conspiracy  subsequently.2 

§  135.  Artifice  or  deception  used. — A  free  and  voluntary 
confession  is  not  inadmissible  because  it  was  subsequently  re- 
tracted,3 or  because  it  was  originally  obtained  by  an  artifice 
practiced  on  the  accused  by  officers  having  him  in  charge,  or 
by  other  persons,  if  the  means  employed  were  not  calculated 
to  cause  him  to  make  an  untrue  statement.4  The  question, 
how  was  the  confession  obtained?  is  of  minor  importance.  The 
main  point  to  be  considered  is,  was  the  confession  probably 


statements  he  may  make  inadmissi- 
ble. Shaw  v.  State,  32  Tex.  Cr.  Rep. 
155,  22  S.  W.  Rep.  588. 

1  See  post,  §  492,  et  seq. 

2  See  cases  cited  in  §  494,  post.    State 
v.  Reed  (La.,  1897),  21  So.  Rep.  732. 

3  Jones  v.  State,  13  Tex.  168. 

4 People  v.  McMahon,  15  N.  Y.  384 
Early  v.  Com.,  86  Ya.  921,   927,   928 
Hardy  r.  United  States,  3  App.  D.  C 
35;  People  v.  McGloin,  91  N.  Y.  241 
State  r.  Staley,    14    Minn.    105,   113 
State  v.  Fredericks,  85  Mo.'  145,  149 
King  v.  State,  40  Ala.  314;  Burton  v 
State  (Ala.,  1896),  18  So.  Rep.  284.   A 
confession,  otherwise  admissible,  will 
not  be  rejected  because  it  was   made 
to  a  detective  who  was  locked  in  a  cell 


with  the  prisoner,  or,  who,  in  the 
guise  of  a  friend,  obtained  the  confes- 
sion from  him.  State  v.  Brooks,  92 
Mo.  542,  576;  Heldt  v.  State,  20  Neb. 
492,  495;  Osborn  v.  Com.  (Ky.,  1893), 
20  S.  W.  Rep.  223.  A  confession  pro- 
cured from  a  prisoner  by  telling  him 
an  accomplice  has  confessed,  which 
statement  is  untrue,  is  not  inadmissi- 
ble on  that  account.  State  v.  Jones, 
54  Mo.  478,  481.  So  an  appeal  to  the 
superstitious  nature  of  an  old  and  in- 
firm woman  by  promising  her  a  charm 
which  would  prevent  detection,  will 
not  exclude  a  confession  elicited 
thereby.  State  v.  Harrison,  115  N.  Car. 
706,  20  S.  E.  Rep.  175. 


170  CRIMINAL  EVIDENCE.  §  135 

true?  1  The  real  question  always  turns,  not  so  much  upon  the 
means  used  in  obtaining  the  confession,  as  upon  the  motives 
which  prompted  the  prisoner  to  make  it.2  The  cases,  however, 
are  not  harmonious,  and  in  the  most  recent  cases  it  has  been 
held  that  a  confession  procured  by  a  person  who,  by  falsely 
representing  himself  to  be  an  attorney,  obtained  the  confidence 
of  the  prisoner,  was  inadmissible.3  A  man  who  will  deliber- 
ately ingratiate  himself  into  the  confidence  of  another  for  the 
purpose  of  betraying  that  confidence,  and,  with  words  of  friend- 
ship upon  his  lips,  seek  by  every  means  in  his  power  to 
obtain  an  admission  which  can  be  tortured  into  a  confession  of 
guilt  which  he  may  blaze  to  the  world  as  a  means  of  accom- 
plishing the  downfall  of  one  for  whom  he  professes  great  friend- 
ship, can  not  be  possessed  of  a  very  high  sense  of  honor  or 
moral  obligation.4  Hence,  it  is  doubtful  if  anything  is  really 
gained  in  the  administration  of  justice  from  the  admission  of 
such  evidence.  A  person  who  may  overhear  the  remarks  of  a 
prisoner  made  to  himself  or  to  another  person,  as  his  wife,  or 
an  attorney,  or  spiritual  adviser,  who  is  incompetent  as  a  wit- 
ness to  privileged  communications,  may  testify  to  what  he  has 
heard.5 

A  confession  constituting  a  part  of  a  prayer  may  be  proved 
by  one  who  overheard  it,  though  he  may  not  be  able  to  prove 
the  whole  prayer.6  A  confession  made  to  another  prisoner,  un- 
der the  erroneous  impression  that  one  prisoner  can  not  testify 
against  the  other,  is  not  for  that  reason  inadmissible.7 

1  People  v.  McMahon,  15  N.  Y.  384,  during  sleep,  for  the  declarant  is  then 
387,  390.  unconscious  of  what  he  is  saying.  Peo- 

2  So  a  confesssion  contained  in  a  let-    pie  v.  Robinson,  19  Cal.  40. 

ter  given  to  a  jailer  for  mailing,  but  6  Woolfolk  v.  State,  85  Ga.  69. 

which  was  retained  by  him,  should  be  'State  v.  Mitchell,  Phil.   (N.  Car.), 

received.     Rex  v.  Derrington,  2  C.  &  L.  447.     A  confession  to  a  fellow-pris- 

P-  418.  oner  in  jail,  procured  by  the  latter's 

3  Cotton  v.  State,  87  Ala.  75.  spiritual  exhortation  and  reading  the 
4Heldt  v.  State,   20  Neb.  492,  497,  Bible  to  the  accused,  is  not  to  be  re- 

498.  jected  because  the  witness  is  himself 

5  Rex  v.  Simons,  6  C.  &  P.  540.  But  a  grossly  irreligious  man.  State  v. 
not  to  incriminating  declarations  made    Stafford,  55  Ga.  591,  596. 


§  136  CONFESSIONS.  171 

§  136.  Confessions  by  intoxicated  persons.  —  Confessions 
made  while  the  accused  is  intoxicated  are  not  thereby  rendered 
inadmissible.  This  is  the  rule,  even  where  the  intoxication 
was  produced  by  liquor  given  to  him  by  the  officers  having 
him  in  charge  for  the  sole  purpose  of  procuring  a  confession.1 
Some  of  the  recent  cases,  however,  reject  confessions  thus  ob- 
tained because  of  the  trick  practiced.  But  the  general  rule  has 
been  sustained,  even  where  the  accused  was  suffering  from  de- 
lirium tremens?  if  he  was  mentally  and  physically  able  to 
describe  past  events  and  to  state  his  own  participation  in  the 
crime.3 

But  the  mental  and  physical  condition  of  the  accused  when 
making  the  confession  is  always  relevant.  Hence,  the  accused 
may  show  his  intoxication  to  determine  the  credit  and  weight 
of  the  confession,  by  his  own  testimony,4  by  cross-examining 
the  witness  who  is  called  to  prove  the  confession,  or  by  other 
witnesses.5  The  jury  are  not  bound  to  believe  the  prisoner's 
confession  made  when  sober,  nor  to  reject  a  contradictory  con- 
fession made  when  he  was  drunk,6  for,  if  the  court  has  ruled 
that  the  confession  was  voluntary,  the  physical  or  mental  con- 
dition of  the  accused  is  merely  one  element  for  the  jury  in 
determining  what  reliance,  if  any,  is  to  be  placed  upon  the 
confession.7 

§  137.  Admissions  receivable  though  involuntary. — The  rule 
that  a  confession  procured  by  a  threat  or  a  promise  is  inadmis- 
sible does  not  apply  to  admissions  not  involving  the  existence 
of  a  criminal  intent,8  if  the  influence  exerted  did  not  amount 
to  duress,  or  to  an  illegal  and  undue  degree  of  compulsion.9 

^efferds  v.  People,  5  Park  Cr.  R.  4Jefferds  v.  State,  5  Park  Cr.  Rep. 

522,  561 ;  Rex  v.  Spilsbury,  7  C.  &  P.  522,  547. 

187 ;  South  v.  People,  98  111.  261,  265 ;  5  State  v.  Feltes,  51  Iowa  493. 

Lester  v.  State,  32  Ark.  727,  730;  Peo-  6  Finch  v.  State,  81  Ala.  41,  50. 

pie  v.  Ramirez,  56  Cal.  533;  State  v.  'Com.  v.  Howe,  9  Gray  (Mass.)  110. 

Grear,  28  Minn.  426.  8  People  v.  Hickman,  113  Cal.   80, 

2  State  v.  Feltes,  51  Iowa  495.  45  Pac.  175;  McLain  v.  State,  18  Neb. 

3  White  v.   State,  32  Tex.  Cr.  Rep.  154,  161;  Underbill  on  Ev.,  §75. 
625,  25  S.  W.    Rep.    784;  Eskridge   v.  9The  rule  in  civil  cases  that  admis- 
State,  25  Ala.  30,  33.  sions   made    to   bring   about  a   com- 


172 


CRIMINAL    EVIDENCE. 


§138 


Some  cases  hold  that  it  is  not  material  that  the  involuntary 
admission,  when  connected  with  other  evidence,  proves,  or 
tends  to  prove,  the  guilt  of  the  defendant.  So  long  as  it  does 
not,  taken  by  itself,  directly  admit  or  suggest  his  guilt,  that  it 
was  voluntary  in  its  character  need  not  be  shown.1  But  the 
cases  are  not  harmonious,  and  it  seems  logical  that  all  the  dec- 
larations of  the  defendant  from  which  guilt  may  be  inferred 
should  come  under  the  rule.2 

§  138.  When  facts  discovered  admit  parts  of  an  involuntary 
confession. — The  main  reason  for  rejecting  confessions  uttered 
under  the  influence  of  hope  or  fear  is  the  great  probability  that 
the  prisoner  has  been  influenced  by  his  expectation  of  punish- 
ment, or  of  immunity,  to  speak  what  is  not  true.  If,  however, 
the  existence  of  extraneous  facts  is  discovered  through  the 
statements  of  the  accused,  no  reason  exists  for  rejecting  those 
parts  of  the  confession  which  led  to  the  discovery,  and  which, 
though  not  voluntarily  made,  have  been  corroborated  convinc- 
ingly by  the  facts  discovered.  The  proper  order  of  proof  is 
for  the  facts  discovered  to  be  proved,  and  then  to  receive  as 
much  of  the  confession  as  leads  up  to  and  as  relates  strictly  to 
such  facts.3 


promise  are  inadmissible  does  not  ap- 
ply in  criminal  cases.  State  v.  Soper, 
16  Me.  293,  295 ;  Underhill  on  Ev.,  §  75. 

People  v.  Velarde,  59  Cal.  457; 
State  v.  Red,  53  Iowa  69,  74 ;  People  v. 
Parton,  49  Cal.  632 ;  Ferguson  v.  State, 
31  Tex.  Cr.  Rep.  93, 19  S.  W.  Rep.  901 ; 
People  v.  McCallum,  103  N.  Y.  587, 
596. 

2  Marshall  v.  State,  5  Tex.  App.  273, 
293;  Quintana  v.  State,  29  Tex.  App. 
401,  407;  Com.  v.  Myers,  160  Mass. 
530,  36  N.  E.  Rep.  481;  Murphy  v. 
People,  63  N.  Y.  590,  596.  In  Rex  v. 
Warickshall  (1783),  1  Leach  Cr.  L. 
298,  300,  which  is  a  leading  case,  the 
court  said:  "The  rule  excluding  in- 
voluntary confessions  has  no  refer- 
ence to  the  admission  or  rejection  of 


facts,  whether  the  knowledge  of  them 
be  obtained  in  consequence  of  an  ex- 
torted confession,  or  whether  it  arises 
from  any  other  source ;  for  a  fact,  if  it 
exist  at  all,  must  exist  invariably  in 
the  same  manner  whether  the  confess- 
ion from  which  it  is  derived  be  in 
other  respects  true  or  false."  This 
case  also  holds,  though  the  modern 
rule  is  otherwise,  that  no  part  of  the 
confession  can  be  received,  but  the 
facts  though  obtained  by  a  confession 
must  be  satisfactorily  proved  without 
divulging  their  source.  Hence,  it  can 
not  be  legally  known  whether  the  fact 
had  been  confessed  or  not. 

3  Murphy  v.  State,  63  Ala.  1;  Rice  v. 
State,  3  Heisk.  (Tenn.)  215,  223-228; 
State  v.  Crank,  2  Baily  (S.  Car.)  66; 


§139  CONFESSIONS.  L73 

Sometimes,  however,  the  order  of  proof  has  been  reversed, 
and  the  court  has  allowed  the  language  of  the  prisoner  to  be 
proved  before  receiving  evidence  of  the  facts  discovered.1 

§  139.  Confessions  procured  by  persons  in  authority. — A  dis- 
tinction is  made  by  many  of  the  cases  between  those  confes- 
sions which  are  procured  by  threats  or  promises  made  by  some 
person  who  is  so  related  to  the  accused  as  to  be  able  to  exer- 
cise authority  over  him,  and  consequently  had  both  the  power 
and  the  opportunity  to  fulfill  the  threat  or  promise;  and  con- 
fessions made  in  response  to  promises  by  persons  having  no 
power  whatever  over  the  prisoner,  and,  consequently,  unable  to 
perform  what  they  promised  to  do.  In  the  former  case  it  was 
conclusively  presumed  that  the  confession  was  forced  and  in- 
voluntary. Hence,  where  the  inducement  to  confess  proceeded 
from  the  prosecuting  witness,  or  his  wife,  or  from  the  district 
attorney,  or  some  member  of  a  coroner's  jury,  or  from  a  police 
officer  or  magistrate,  the  confession  was  rejected  as  presumably 
extorted  by  fear  or  prompted  by  hope  of  immunity.2 

Upon  the  question  whether  any  presumption  was  to  be 
recognized  where  a  confession  was  made  in  response  to  a  prom- 
ise or  threat  by  one  having  no  power  whatever  over  the  pris- 
oner, and  who  was,  for  that  reason,  unable  to  fulfill  the  threat 
or  promise,  the  authorities  are  divided.  Some  of  the  cases 
hold  that  a  threat  or  promise  made  by  such  a  person  creates  a 
conclusive  presumption  that  the  confession  was  not  free  and 
voluntary.3  But  other  authorities  hold,  and  these  perhaps  are 
in  the  majority,  that  the  threat  or  promise  must  proceed  from 
some  one  in  authority,  and  who  has  the  power  to  carry  it  into 

State  v.  Vaigneur,  5  Rich.   (S.  Car.)  Sneed  (Term.)  75,  80,  81;  Jordan  v. 

391 ;  Com.  v.  Knapp,  9  Pick.  (Mass.)  State,  32  Miss.  382. 

496,  511 ;  United  States  v.  Richards,  2  2  State  v.  Carson,  36  S.  Car.  524,  532, 

Cranch  C.  C.  439;  Laros  v.  State,  84  15  S.  E.  Rep.  588;  Clayton  v.  State, 

Pa.  St.  200;  Done  v.  People,  5  Park.  31  Tex.   Crim.   R.  489,  and  see  cases 

Cr.  Rep.  364,  396.  cited  in  Underhill  on  Evidence,  §  95; 

1  Duffy  v.  People,  5  Park.  Cr.  Rep.  s  State  v.  Revells,  34  La.  An.  381; 

321,  26  N.  Y.  588,  590;  Reg.  v.  Gould,  Knapp's  Case,  9  Pick.    (Mass.)   496, 

9  C.  &  P.  364 ;  Deathridge  v.  State,  1  500,  and  see  cases  cited  in  Underhill 

on  Evidence,  p.  136,  n.  1. 


174  CRIMINAL  EVIDENCE.  §  140 

execution,  or  it  must  be  made  in  the  presence  and  with  the 
implied  approval  of  such  a  person,  to  justify  the  court  in  draw- 
ing an  inference  that  the  confession  was  involuntary.1  These 
distinctions,  however,  when  tested  by  the  actual  circumstances 
of  each  case,  prove  of  very  little  value.  The  question  always 
is,  was  the  will  of  the  prisoner  actually  subjugated  and  over- 
come, so  that  the  confession  is  not  the  free  product  of  his  own 
will  but  forced  from  his  lips  by  the  superior  will  of  another? 
This  is  a  question  of  mixed  law  and  fact,  to  be  answered  by  the 
court  or  the  jury  according  to  the  facts  and  circumstances  of 
each  particular  case.  No  presumption  should  be  recognized 
based  upon  the  official  position  of  the  person  who  heard  the 
confession,  though  this  may  be  taken  into  consideration  with 
the  other  facts.  Doubtless  the  fact  that  the  person  who  ob- 
tained a  confession  by  the  use  of  a  promise  or  a  threat  did  not 
possess  the  power  and  authority  to  carry  either  into  effect,  if 
known  to  the  prisoner  at  the  time  of  making  the  confession, 
would  nullify  the  effect  intended  to  be  produced  upon  h\s  mind, 
and  the  confession  would  be  regarded  as  his  free  act.2 

§  140.  Confession  need  not  be  spontaneous. — A  confession, 
in  other  respects  admissible,  should  not  be  rejected  merely  be- 
cause it  is  not  the  spontaneous  utterance  of  the  prisoner. 
Though  the  confession  was  obtained  by  the  employment  of 
persistent  questioning,  it  must  be  received.  This  is  so,  even 
where  the   interrogations  by  their  form  assume  or  presuppose 

1  Smith  v.  Com.,  10  Gratt.  (Va.)  not  inadmissible,  although  made 
734;  Early  v.  Com.,  86  Va.  921,927,  after  an  exhortation,  or  admonition, 
928;  Com.  v.  Morey,  1  Gray  (Mass.)  or  other  similar  influence,  proceed- 
461, 463 ;  Searcy  v.  State,  28  Tex.  App.  ing  at  a  prior  time  from  some  one 
513.  who    has    nothing    to    do   with    the 

2  Com.  v.  Tuckerman,  10  Gray  apprehension,  prosecution  or  exam- 
(Mass.)  173,  190;  State  v.  Fortner,  43  ination  of  the  prisoner;  for  a  prom- 
Iowa  494 ;  McAdory  v.  State,  62  Ala.  ise  made  by  a  person  who  interferes 
154,  161 ;  Ulrich  v.  People,  39  Mich,  without  any  authority  of  this  kind  is 
245,250;  Underhill  on  Evidence,  p.  not  to  be  presumed  to  have  such  an 
136.  In  3  Russell  on  Crimes,  p.  S93,  effecton  the  mind  of  the  prisoner  as  to 
the  author  says:  "The  result  of  the  induce  him  to  confess  he  is  guilty  of 
cases  seems  to  be  that  a  confession  is  a  crime  of  which  he  is  innocent." 


§  141  CONFESSIONS.  175 

that  the  prisoner  is  guilty,1  providing  that,  in  putting  such 
questions,  no  unfair  advantage  amounting  to  compulsion  or 
duress  was  gained  over  him.2  A  voluntary  confession  is  not 
inadmissible  because  the  person  to  whom  it  was  made  prom- 
ised under  oath  that  he  would  not  reveal  it.3 

Nor  should  an  admissible  confession  be  rejected  because  it 
was  the  result  of  some  benefit  having  no  connection  with  the 
crime  confessed.  Thus,  a  confession  which  has  been  induced 
by  a  promise  that  the  prisoner  may  see  his  wife,  who  was  con- 
fined in  another  cell,4  or  have  his  shackles  removed,5  or  be 
permitted  to  take  exercise,  or  be  released  from  a  rigorous  con- 
finement, should  be  received.6 

§  141.  Confessions  made  by  signs  or  gestures. — Under  this 
head  we  may  group  direct  admissions  of  guilt  in  the  form  of 
affirmative  gestures,  nods  or  signs  made  in  response  to  leading 
questions  or  to  questions  which  assume  the  guilt  of  the  person 
addressed.  Can  a  witness  who  saw  the  incriminating  gesture 
testify  that  it  was  made,  the  question  which  called  it  out  being 
also  proved,  in  a  case  where  he  would  be  precluded  from  testi- 
fying to  an  express  confession  because  the  circumstances  ren- 
dered it  involuntary? 

An  affirmative  nod  in  response  to  a  direct  accusation  of 
crime  is  no  less  a  confession  than  an  oral  statement.  If  the 
accusation  is  coupled  with  a  threat  or  a  promise,  evidence  of 
the  nod  or  gesture  should  be  rejected  as  an  attempt  to  accom- 
plish by  indirection  what  can  not  be  done  directly.  Actions 
speak  louder  than  words.     Expressive  gestures  often  manifest 

1  Hardy  v.  United  States,  3  App.  6  "On  the  whole  the  authorities  seem 
D.  C.  35;  People  v.  Wentz,  37  N.  Y.  to  he  in  favor  of  the  proposition  that 
303;  People  v.  McGloin,  91  N.  Y.  241,  the  inducement  must  be  of  a  temporal 
24P>.  nature;  whether  or  no   it  must  have 

2  Cox  v.  People,  80  N.  Y.  500;  Mc-  reference  to  the  charge,  has  scarcely 
Clain  v.  Com.,  110  Pa.  St.  263,  269;  been  fully  discussed.  It  is  certainly 
Murphy  v.  People,  63  N.  Y.  590,  597.  possible  to  conceive  cases  in  which  a 

3  State  v.  Darnell,  1  Houst.  (Del.)  much  stronger  inducement  might  be 
321;  Com.  v.  Knapp,  9  Pick.  (Mass.)  held  out  to  a  prisoner  than  one  hav- 
496;  Cox  v.  People,  80  N.  Y.  500,  515.  ing    reference  to   an   escape   from   a 

4  Rex  v.  Lloyd,  6  C.  &  P.  393.  charge  not  involving  any  serious  con- 

5  State  v.  Tatro,  50  Vt.  483.  sequences."     Roscoe  Criin.  Ev.,  46. 


176  CRIMINAL  EVIDENCE.  §  142 

more  clearly  the  emotion  of  the  mind  than  the  most  forcible 
and  vehement  language.  A  direct  confession  by  an  act  is 
therefore  inadmissible  whenever  the  spoken  or  written  word 
would  be  excluded.1 

§  142.  Confessions  of  treason. — Because  of  the  statutory  re- 
quirement under  which  the  testimony  of  two  witnesses  to  an  overt 
act  was  necessary  to  convict  one  of  the  crime  of  treason,  it  was 
at  onetime  doubted  whether  an  extra-judicial  confession  was  ad- 
missible against  one  on  trial  for  the  commission  of  that  crime.2 
It  is  now  the  law  that  while  no  one  can  be  convicted  of  treason 
upon  his  confession  not  made  in  open  court,  that  is,  by  a  plea 
of  guilty  to  the  indictment,  his  extra-judicial  confession  may 
be  received  against  him.  The  making  of  the  confession  and 
the  confession  itself  must,  to  be  admissible,  be  proved  by  two 
witnesses.3 

§  143.  Confessions  made  by  young  children. — Where  a 
young  child  possesses  sufficient  mental  capacity,  or  is  of  such 
an  age  as  will  render  him  responsible  for  the  criminal  conse- 
quences of  his  actions,  his  confession  is  admissible,  under  the 
same  circumstances  which  will  admit  the  confession  of  a  ma- 
ture person.4  And  a  child,  under  the  age  of  fourteen  years, 
may,  if  clearly  and  fully  shown  to  be  able  to  distinguish  be- 
tween right  and  wrong  as  respects  the  particular  circumstances 
of  the  case  under  consideration,  be  convicted  of  murder  or 
other  felony  upon  his  extra-judicial  confession,  if  the  corpus 
delicti  be  otherwise  proved.5 

1  Nolen  v.  State,  14  Tex.  App.  474,        3 1   East  P.   C,   131-133,   1   Burr's 
483 ;  Roscoe  Cr.  Ev.,  p.  51 ;  1  Greenleaf    Trial  196. 

on  Evidence,  §  282.     The  distinction  4Com.  v.  Smith,  119  Mass.  305,  311 ; 

between  the  admissibility  of  evidence  Earp  v.   State,   55    Ga.   136;    Stage's 

of  facts  discovered,  through  an  invol-  Case,  5  City  Hall  Rec.  (N.  Y.)  177. 

untary  confession  which  is  not  admis-  5  Martin  v.  State,  90  Ala.  602,  8  So. 

sible,  and  an  act  not  admissible  be-  Rep.   858,  861 ;    Rex   v.  Thornton,  1 

cause  itself  constituting  an  involunta-  Moody  C.  C.  27;  Com.  v.  Smith,  119 

ry  confession,   should   not    be  over-  Mass.  305,  311,  but  cf.  Ford  v.  State 

looked.    See  ante,  §§  137,  138.  (Miss.,  1897),  21  So.  Rep.  524. 

2  Underhill  on  Evidence,  §  380. 


§  144  CONFESSIONS.  177 

§  144.  Judicial  confessions — Plea  of  guilty. — As  will  be 
subsequently  pointed  out,  the  jury  may  convict  the  accused 
upon  an  extra-judicial  confession  only,  if  they  believe  that  it 
is  corroborated  by  independent  proof  of  the  corpus  delicti. 

But  a  judicial  confession  voluntarily  made  by  an  accused 
person  having  sufficient  mental  capacity  to  understand  the 
nature  and  meaning  of  his  act,  in  the  hearing  of  the  court  and 
jury,  as  by  a  plea  of  guilty  entered  in  open  court,  is  conclusive 
on  them.  On  such  a  plea,  which  (except  in  the  case  of  a  cor- 
poration) must  be  made  by  the  defendant  in  person  in  open 
court,1  the  prisoner  may,  if  sane,  be  convicted  at  once  and 
sentenced  to  death  or  imprisonment.2  The  judge  may  in  his 
discretion  permit  a  plea  of  guilty  to  be  withdrawn  at  any  time 
before  judgment,3  and  a  plea  of  not  guilty  to  be  substituted  in 
its  place.4  On  the  other  hand,  if  the  prisoner  had,  and  acted 
under,  proper  legal  advice,  the  discretion  of  the  court  is  not 
abused  if  the  judge  shall  refuse  to  allow  a  plea  of  guilty  to 
be  withdrawn  after  sentence  of  death,  but  before  the  entry  of 
judgment  by  the  clerk.5 

If,  however,  the  refusal  to  permit  the  plea  of  guilty  to  be 
withdrawn  results  in  gross  and  manifest  injustice  to  the  pris- 
oner, as  would  be  the  case  where  he,  by  mistake,  pleads  guilty 
to  the  wrong  indictment,6  or,  being  of  foreign  birth  and  train- 
ing, he  was  densely  ignorant  of  the  language  and  of  the  ju- 
dicial institutions  of  the  jurisdiction,7  or  where  his  plea  was 
caused  by  his  erroneous  belief,  based  upon  a  remark  by  the 
judge  that  the  lowest  sentence  would  be  imposed,8  or  where 
there    is    any  doubt    of    the    sanity  of    the   prisoner,9    or    he 

1  Saunders  v.  State,   10  Tex.  App.  113,  114.   Cf.  Com.  v.  Hagarman,  10 

336,338.  Allen  (Mass.)  401;  United  States  v. 

2Dantz  v.   State,  87  Ind.  398,  399;  Bayaud,  23  Fed.  Rep.  721. 

Com.  v.  Brown,  150  Mass.  330;  Sellers  6  Davis  v.  State,  20  Ga.  074,  676. 

v.  People,  6  111.  183;  State  v.  Cowan,  7  Gardner  r.  State,  106  111.  76. 

7  Ired.  (N.  Car.)  239.  8  State  v.  Stephens,  71  Mo.  535,  537. 

3  Reg.  v.  Sell,  9  C.  &  P.  346.  9  Com.  v.  Battis,  1  Mass.  95 ;  Burton 

4  People  v.  McCrory,  41  Cal.  458.  v.  State,  33  Tex.  Cr.  Rep.  138;  People 

5  Clark  v.  State,  58  N.  J.  L.  383,  34  v.  Scott,  59  Cal.  341. 
Atl.  Rep.  3;  Peoples.  Lennox,  67  Cal. 

12— Cr.  Ev. 


178  CRIMINAL  EVIDENCE.  §  145 

pleads  guilty  under  duress,  and  because  of  the  intimidation 
and  threats  of  being  lynched  by  a  mob,1  the  conviction  should 
be  reversed.  A  statute  which  requires  the  judge  to  satisfy 
himself  that  a  plea  of  guilty  was  freely  made,  uninfluenced 
by  fear  or  the  delusive  hope  of  pardon,  with  full  knowledge  of 
the  charge  and  without  undue  influence,  must  be  strictly  ob- 
served with  a  view  of  protecting  the  accused  against  unscru- 
pulous persons  who  might  extort  a  plea  of  guilty  from  him 
through  his  ignorance  or  by  false  promises.2  A  plea  of  guilty 
is  only  a  confession  of  guilt  in  the  manner  and  form  as  charged 
in  the  indictment.  It  admits  the  facts  charged  and  no  others. 
It  does  not  admit  that  the  facts  stated  in  the  indictment  con- 
stitute a  crime.  Hence  a  conviction  on  a  plea  of  guilty  should 
be  reversed  where  no  legal  crime  is  actually  charged  in  the  in- 
dictment,3 or  where  the  crime  to  which  the  accused  pleads 
guilty  is  not  the  offense  described  in  the  indictment.4 

§  145.  Confessions  of  persons  not  indicted. — The  incrimi- 
nating statements  of  a  third  person  that  he  committed  the 
crime  for  which  the  accused  is  on  trial  are  hearsay.  Such  per- 
sons must  be  produced  as  witnesses.5 

The  prisoner  may,  of  course,  disprove  his  guilt  by  proving 
the  guilt  of  some  other  person.  But  he  can  not  do  that  by  in- 
troducing the  extra-judicial  confession  or  declaration  of  that 
person  that  he  intended  to  commit,  or  that  he  had  committed, 
the  crime.  The  extra-judicial  declaration  is  never  conclusive 
upon  the  declarant.  He  may,  if  he  be  subsequently  indicted 
because  of  this  so-called  confession,  demonstrate  its  falsity  and 

1  Sanders  v.  State,  85  Ind.  318,  320-    Saunders  v.  State,  10  Tex.  App.  336, 
334.  339;  Coleman  v.  State  (Tex.,  1896),  33 

2  People  v.  Lepper,  51   Mich.   196,     S.  W.  Eep.  1083. 

199;  Coleman  v.  State  (Tex.,  1896),  33  3  Crow   v.   State,    6  Tex.   334,   355; 

S.  W.  Rep.  1083;    Frosh  v.  State,  11  Fletchers  State,  12  Ark.  169. 

Tex.  App.  280.     When  a  statute  pre-  4  State  v.  Queen,  91  N.  Car.  659,  660. 

scribes  certain  absolutely  essential  pre-  5  Rhea  v.  State,  18  Tenn.  257 ;  Welsh 

liminaries  are  to  be  observed  before  v.  State,  96  Ala.  92,  96 ;  State  v.  Dun- 

the  plea  of   guilty  can  be   accepted,  can,  116  Mo.  288;  State  w.  Fletcher,  24 

these  prerequisites  must  be  made  man-  Ore.  295,  33  Pac.  Rep.  575,  577;  State 

ifestby  the  record  and  can  not  be  sup-  v.  Haynes,  71  N.  Car.  79,  84;  State  v. 

plied    by  inference    or    intendment.  Bishop,  73  N.  Car.  44. 


§  146  CONFESSIONS.  179 

absolve  himself.  To  receive  such  statements  as  exculpatory 
proof  would  be  to  open  wide  the  door  for  the  practice  of  fraud 
whereby  the  acquittal  of  the  real  criminal  would  be  assured.1 
But  if  it  is  alleged  by  the  state  that  the  third  person  was  an 
accessory,  his  confession  that  he  was  the  principal  is  admissi- 
ble in  favor  of  one  who,  being  tried  as  the  principal,  claims  he 
is  not.2 

§  146.  The  value  of  confessions  as  evidence. — The  eviden- 
tial value  of  confessions  and  their  character,  cogency  and  force 
as  proof  of  crime  are  subjects  that  have  elicited  much  discus- 
sion. Some,  basing  their  views  upon  the  natural  presumption 
that  a  man  will  not  voluntarily  incriminate  himself  by  utter- 
ing falsehoods,  regard  confessions  as  of  considerable,  if  not  of 
paramount  value,  in  determining  the  guilt  of  the  accused.8 
Still  it  is  usually  very  necessary  that  some  degree  of  care  should 
be  used  in  receiving  the  confession,  and  much  caution  em- 
ployed by  the  jury  in  ascertaining  its  weight  and  sufficiency. 
Its  credibility  is  entirely  for  their  determination,  and  though 
they  may  believe  it  to  have  been  wholly  free  and  voluntary, 
they  may,  and  indeed  must,  scrutinize  the  confession  closely, 
keeping  in  view  the  peculiar  circumstances  in  which  it  was 
made.  For  it  must  be  remembered  that  though  it  may  have 
been   voluntary  the  accused  was,  at  the  time  he  made  it,  em- 

1  Greenfield  v.  People,  85  N.  Y.  75,  or  property,  are  not  competent  evi- 

90;  Daniel  v.  State,  65  Ga.  199;  State  dence  in  favor  of  the  accused,  except 

v.  Beaudet,  53  Conn.  536,  540;  Smith  for  the  purpose  of  impeaching  the  tes- 

v.  State,    9  Ala.   990;  West  v.  State,  timony  of  the  injured  person,  in  case 

76  Ala.   98,   99;   State  v.  Gee,  92  N.  he  shall  testify  as  a  witness,   unless 

Car.    756,    760;    People    v.    Gillespie  they  form  a  part  of  the  res  gestiv  of 

(Mich.,    1897),   69   N.  W.  Rep.   490.  some  relevant  act.    Williams  v.  State, 

Defendant  will   not  be  permitted  to  52  Ala.  411;   State  v.  Maitremme,  14 

show  that  a  third  person  whose  con-  La.  An.  830;    Com.  v.   Densmore,  94 

nection  with  the  crime  does  not  ap-  Mass.  535;   People  v.  McLaughlin,  44 

pear  fied  on  the  night  it  was  commit-  Cal.  435. 

ted.    Owensby  v.  State,  82  Ala.  63,  64.  3  People  v.  Borgetto,  99  Mich.  336, 58 

"Pace  v.  State  (Tex.,  1893),  20  S.W.  N.    W.  Rep.  328.    See,  also,  Com.  v. 

Rep.  762.    The  admissions  and  dec-  Schaffer,  178  Pa.  St.  409,  35  Atl.  Rep. 

larations  of  a  person  who  has  been  924;  Peoples.  Bennett,  37  N.  Y.  117; 

injured  by  the  accused  in  the  perpe-  Mercer  v.  State,  17  Ga.  146. 
tration  of  the  crime,  either  in  person 


180  CRIMINAL  EVIDENCE.  §  146 

barrassed  by  the  present  rigors  of  his  arrest  and  confinement 
in  prison  and  menaced  with  the  fear  of  death  or  a  term  of  im- 
prisonment in  the  future.  Such  circumstances  are  not  in 
general  conducive  to  the  calmness  and  deliberation  which  are 
necessary  to  secure  a  truthful  and  accurate  narrative  of  past 
events  of  a  stirring  nature  in  which  the  speaker  was  the  prin- 
cipal actor  and  participant.1 

From  the  moment  of  his  arrest  an  accused  person  is  sur- 
rounded by  shrewd  and  experienced  police  officials,  whose  daily 
business  it  is  to  deal  with  hardened  criminals,  and  whose  in- 
terest it  is,  not  to  secure  the  acquittal  of  the  innocent,  but  to 
bring  the  guilty  to  justice.  The  fact  that  a  person  under  arrest 
is  subsequently  proved  to  be  innocent  of  the  crime  charged,  is 
often  regarded  as  showing  a  lack  of  judgment  or  experience  on 
the  part  of  the  officials  causing  or  procuring  his  arrest.  Hence 
it  commonly  happens  that  detectives,  policemen  and  others 
entrusted  with  the  detection  and  apprehension  of  criminals 
assume  that  every  one  who  is  placed  under  arrest  is  guilty  of 
the  crime  charged.  Such  a  mental  attitude  often  leads  to  a 
willful,  and  sometimes  even  to  an  unconscious  and  involuntary 
suppression,  of  those  facts  which  indicate  that  the  prisoner  is 
innocent,  and  to  an  exaggeration  of  those  which  point  to  guilt.2 

So,  too,  the  accused  may  confess  that  he  is  guilty  in  order  to 
divert  suspicion  from  another,  or  to  enable  some  other  person 
to  escape,  and  when  he  is  himself  placed  on  trial  repudiate  all 
he  has  said,  and  conclusively  prove  his  innocence  by  unim- 
peachable evidence.  A  confession  made  to  free  another  from 
suspicion  or  arrest  is  not,  for  that  reason,  inadmissible,  par- 
ticularly where  the  suspected  person  testifies  that  the  accused 

1  Nobles  v.  State  (Ga.,  1897),  26  S.  E.  enced  by  the  hope  of  advantage,  or 

Eep.  64.     In  Com.  v.  Tuckerman,  10  fear  of  injury,  to  state  things  which 

Gray  (Mass.)  173,  190,  the  court  said:  are  not  true.     The  influence  which  is 

"It  is  not  because  of  any  breach  of  to  exclude  the  party's  confession  must 

good  faith  in  admitting  them,  nor  be-  be   external   influence,    and   not   the 

cause  they  are  extorted  illegally,  but  mere  operation  of  his  own  mind." 

the  reason  is  that  in  the  agitation  of  2  Priest  v.  State,  10  Neb.  393,  400;  1 

mind  in  which  the  party  charged  is  Green,  on  Ev.,  §  219. 
supposed  to  be,  he  is  liable  to  be  influ- 


§  147  CONFESSIONS.  181 

substantially  acknowledged  the  facts  confessed  in  his  hearing.1 
Such  cases  are,  however,  admittedly  rare,  and  can  hardly,  with 
justice,  be  invoked  to  impeach  confessions  made  under  ordi- 
nary circumstances  rendering  them  admissible. 

§  147.    Mode  of  proof,  when  corroboration  is  required. — A 

naked  confession  is  one  which  is  not  corroborated  by  independ- 
ent proof  of  the  corpus  delicti.  Upon  such  a  confession  made 
in  open  court,  as,  for  example,  by  a  plea  of  guilty,  a  convic- 
tion of  any  crime,  and  sentence  may  be  had.  But  in  the  case 
of  all  extra-judicial  confessions  it  is  the  rule  that  the  corpus  de- 
licti must  be  proved  by  additional  evidence  before  a  conviction 
upon  the  naked  confession  alone  will  be  upheld.2 

The  witness  called  to  prove  an  oral  confession  need  not  re- 
peat the  exact  words  of  the  accused.3  But  it  is  absolutely  es- 
sential that  he  should  remember  the  substance  of  what  was 
said  in  the  conversation4  and  be  able  to  state  it  accurately. 
And  unless  it  shall  affirmatively  appear  that  the  witness  thor- 
oughly understood  the  language  in  which  the  prisoner  spoke,8 
the  confession  should  be  rejected. 

People  v.  Smalling,   94  Cal.  112;  46  Fed.  Rep.  917,  919.    Evidence  of 

State  v.  Grant,  22  Me.  171,174.  the  finding  of  a  body  showing  marks 

2  Harden  v.  State,  109  Ala.  50,  19  So.  of  violence  sufficient  to  cause  death, 
Rep.  494;  Bartley  v.  People,  156  111.  and  of  weapons  or  articles  stained 
234;  Peoples.  Simonsen,  107  Cal.  345;  with  blood  near  it,  sufficiently  proves 
Attaway  v.  State  (Tex.,  1896),  34  S.W.  that  a  murder  has  been  committed 
Rep.  112;  People  v.  Tarbox,  115  Cal.  to  sustain  a  conviction  based  on 
57,  46  Pac.  Rep.  896;  Laughlin  v.  an  extra-judicial  confession.  Paul  v. 
Com.  (Ky.,  1897),  37  S.  W.  Rep.  590;  State,  65  Ga.  152,  155;  People  v. 
Pitts  v.  State,  43  Miss.  472,  480;  Ber-  Deacons,  109  N.  Y.  374,  378.  The 
gen  v.  People,  17  111.  426;  South  v.  prosecution  need  not  use  the  extra- 
People,  98  111.  261 ;  State  v.  Laliyer,  judicial  confession  of  the  accused,  but 
4  Minn.  368;  Johnson  v.  State,  59  may  prove  its  case  by  other  evidence. 
Ala.  37;  State  v.  Keeler,  28  Iowa  551 ;  Com.  v.  Miller,  3  Cush.  (Mass.)  243. 
Stringfellow  v.  State,  26  Miss.  157,  3  State  v.  Desroches,  48  La.  An.  428; 
165;  Priest  o.  State,  10  Neb.  393,  399;  State  v.  Avery,  31  La.  An.  181. 
People  v.  Deacons,  109  N.  Y.  374;  4  Berry  v.  Com.,  10  Bush  (Ky.)  15; 
Holland  v.  State  (Fla.,  1897)  22  So.  Kendall  v.  State,  65  Ala.  492. 
Rep.  298;  Davis  v.  State  (Neb.,  1897),  5  State  v.  Buster  (Nev.,  1897),  47 
70  N.W.  Rep.  984  ;  Willard  v.  State,  27  Pac.  Rep.  194;  People  v.  Gelabert,  39 
Tex.  App.  386;  People  v.  Lane,  49  Cal.  663,  665.  Cf.  People  v.  Thorns,  3 
Mich.   340;   United  States  v.   Boese,  Park.  Cr.  Rep.  256. 


182 


CRIMINAL    EVIDENCE. 


§147 


The  confession  may  be  given  in  evidence  for  the  accused  as 
well  as  against  him.1  The  whole  of  what  was  said  should  be 
put  in  evidence  by  the  prosecuting  officer,  and  if  he  shall  re- 
fuse of  neglect  to  do  so,  the  accused  has  the  right  to  prove  the 
part  omitted  which  may  be  favorable  to  him,2  and  the  confes- 
sion may  be  partly  or  wholly  rejected  by  the  jury  if  it  is  not 
believed  by  them.3  To  allow  the  introduction  of  fragments  of 
a  conversation,  admitting  those  indicative  of  the  prisoner's 
criminality  and  suppressing  others  which,  by  limiting  or  mod- 
ifying the  former,  may  establish  his  innocence,  is  utterly  in- 
consistent with  all  principles  of  justice  and  humanity.4 


1  Conner  v.  State,  34  Tex.  659,  662 
Rex  v.  Clewes,  4  C.  &  P.  221,  223,  226 

2  People  v.  Gelabcrt,  39  Cal.  663, 665 
Conner  v.  State,  34  Tex.  659,  666 
Griswold  v.  State,  24  Wis.  144,  148 
Crawford  v.  State,  4  Coldw.  (Tenn.) 
190,  192 ;  State  v.  Worthington,  64  N. 
Car.  594,  596 ;  State  v.  Hollenscheit,  61 
Mo.  302 ;  Dodson  v.  State,  86  Ala.  60, 
63;  Com.  v.  Keyes,  11  Gray  (Mass.) 
323;  State  v.  Green  (S.  Car.,  1897),  26 
S.  E.  Rep.  234.  "There  is  no  doubt 
that  if  a  prosecutor  uses  the  declara- 
tion of  a  prisoner  he  must  take  the 
whole  of  it  together,  and  can  not  se- 
lect one  part  and  leave  another ;  and 
if  there  be  either  no  other  evidence  in 
the  case,  or  no  other  evidence  incom- 
patible with  it,  the  declaration  taken 
in  evidence  must  be  admitted  as  true. 
But  if,  after  the  whole  of  the  state- 
ment of  the  prisoner  is  given  in  evi- 
dence, the  prosecutor  is  in  a  position 
to  contradict  any  part  of  it,  he  is  at 
liberty  to  do  so,  and  then  the  state- 
ment of  the  prisoner  and  the  whole  of 


the  other  evidence  must  be  left  to  the 
jury  for  their  consideration,  precisely 
as  in  any  other  case  where  one  part 
of  the  evidence  is  contradictory  of  an- 
other." The  court,  in  Rex  v.  Jones, 
2  C.  &  P.  629. 

3  Rex  v.  Clewes,  4  C.  &  P.  221,  225; 
Furstv.  State,  31  Neb.  403,  409;   Peo- 
ple v.  Taylor,  93  Mich.  638,  641 ;  Gris- 
wold v.  State,  24  Wis.  144,  148;    Han- 
rahan  v.  People,  91  111.  142,  147 ;  Long 
v.  State,  86  Ala.  36,37;    Johnson  v. 
State  (Ga.,  1890),  12  S.  E.  Rep.  471 
People  v.   Cassidy,    133    N.  Y.    612 
Blackburn  v.  State,  23  Ohio  St.  146 
Com.  v.  Brown,  149  Mass.  35, 38 ;  Hauk 
v.   State  (Ind.,  1897),  47  N.  E.  Rep. 
465. 

4  A  witness  called  to  identify  a  writ- 
ten confession,  on  being  asked  if  the 
accused  said  anything  further,  may 
state  that  the  writing  contains  the 
substance  of  what  was  said.  Such  an 
answer  is  not  inadmissible  as  an  opin- 
ion. State  v.  Williamson,  106  Mo. 
162,  171. 


CHAPTER  XIII. 


ALIBI. 


§148.   Definition   and  character  of  §151.  Impeaching  the  alibi — Defend- 
alibi — Burden  of  proof.                               ant's  declarations. 

149.  Distance  and  period  of  absence.  152.  Reasonable  doubt. 

150.  Relevancy  of  evidence.  153.  Cautioning  the  jury. 

§  148.    Definition  and  character  of  alibi — Burden  of  proof. — 

The  plea  of  an  alibi  is  a  plea  of  not  guilty,  because  at  the  in- 
stant of  the  crime  the  accused  was  "elsewhere"  than  where 
it  was  committed.  In  theory  this  plea  may  be  viewed  from 
two  standpoints.  First,  it  may  be  regarded  as  a  traverse  of 
the  crime  alleged  raising  a  clear  and  direct  issue  of  the  defend- 
ant's guilt  on  the  whole  case  in  the  same  manner  as  any 
defense  involving  the  assertion  of  an  independent  and  distinct 
fact,  as,  for  example,  the  plea  of  a  prior  acquittal,  or  that  the 
supposed  victim  of  a  homicide  is  alive.  Or,  it  may  be  re- 
garded solely  as  traversing  a  single  element  in  the  criminal 
charge  against  the  accused,  i.  e.,  his  presence  at  the  place  and 
time  of  the  offense. 

The  majority  of  the  cases,  adopting  the  former  view,  main- 
tain that  the  burden  of  proving  the  alibi  is  upon  the  defendant, 
in  accordance  with  the  rule  that  the  burden  of  proof  is  always 
upon  the  party  asserting  an  affirmative  fact,  or  one  peculiarly 
within  his  own  knowledge.1  Until  the  state  offers  rebutting 
evidence  to  overcome  the  alibi,  the  only  evidence  before  the 
jury  to  counter-balance  defendant's  evidence  is  the  incidental 
proof  of  time  and  place  contained  in  the  prima  facie  case  of  the 
state.  But  suppose  all  the  evidence  offered  by  the  state  show- 
ing the  presence  of  the  accused,  while  insufficient  to  convince 

^ee  Underbill  on  Ev.,  §250. 
(183) 


184 


CRIMINAL    EVIDENCE. 


§148 


the  jury  of  that  fact  beyond  a  reasonable  doubt,  preponderates 
over  the  evidence  of  the  defendant  on  that  point?  Must  he 
lose  the  benefit  of  this  evidence  in  disproving  his  guilt  because 
on  one  particular  point  it  is  out-weighed?  The  jury  have  no 
right  to  disregard  any  evidence  unless  they  totally  disbelieve  it. 
They  may  and  should  consider  defendant's  evidence  of  an  alibi 
in  connection  with  all  the  evidence  in  the  case;  and  the  general 
rule  still  holds  good  that  the  state  is  required  to  convince 
them  of  his  guilty  participation  in  the  crime,  time  and  place 
being  essential  ingredients  in  this  participation,  beyond  a 
reasonable  doubt  upon  all  the  evidence.1 

If  the  alibi  be  regarded  solely  as  a  denial  of  a  single  neces- 
sary element  in  the  charge,  it  seems  as  illogical  to  place  the 
burden  of  proof  on  the  accused  as  it  would  be  to  require  him 
to  prove  the  absence  of  a  criminal  intent.  Time  and  place  are 
essential  elements  of  a  crime.  The  state  must  prove  them 
prima  facie,  at  least,  and  may  do  so  inferentially,  as  it  must 
prove  the  intent.  If  no  alibi  is  alleged,  the  burden  of  proof, 
under  a   plea  of  not  guilty,  to  show  the  place  of  the  crime  is 


1  State  v.  Conway,  56  Kan.  682,  44 
Pac.  Rep.  627 ;  State  v.  Harvey,  131  Mo. 
339;  State  v.  Lowry,  42  W.  Va.  205, 
24  S.  E.  Rep.  561 ;  People  v.  Pichette 
(Mich.,  1897),  69  N.  W.  Rep.  739;  Bor- 
rego  v.  Territory  (N.  Mex.,  1897),  46 
Pac.  Rep.  349;  Carlton  v.  People,  150 
111.  181;  Ackersonv.  People,  124  111. 
563,  571,  16  N.  E.  Rep.  847,  849;  Wat- 
son v.  Com.,  95  Pa.  St.  418,  422;  Ware 
v.  State,  59  Ark.  379,  392,  27  S.  W. 
Rep.  485;  Harrison  v.  State,  83  Ga. 
129,  134,  9  S.  E.  Rep.  542;  Walters 
v.  State,  39  Ohio  St.  215,  217;  Chappel 
v.  State,  7  Coldw.  (Tenn.)  92;  State  v. 
Ward,  61  Vt.  153,  192;  Beavers  v. 
State,  103  Ala.  36,  15  So.  Rep.  616; 
Bennett  v.  State,  30  Tex.  App.  341,  17 
S.  W.  Rep.  545;  State  v.  Chee  Gong, 
16  Ore.  534,  538,  19  Pac.  Rep.  607.  In 
Watson  v.  Com.,  95  Pa.  St.  418,  422, 
the  court  says :  "An  alibi  is  as  much  a 
traverse  of  the  crime  charged  as  any 


other  defense,  and  proof  tending  to 
establish  it,  though  not  clear,  may, 
with  other  facts  of  the  case,  raise  a 
reasonable  doubt  of  the  guilt  of  the 
accused.  When  the  evidence  is  so 
imperfect  as  not  to  satisfy  the  minds 
of  the  jury  they  will  not  find  the  fact. 
Where  the  commonwealth  rests  upon 
positive  and  undoubted  proof  of  the 
prisoner's  guilt,  it  should  not  be  over- 
come by  less  than  full,  clear  and 
satisfactory  evidence  of  the  alleged 
alibi.  But  the  evidence  tending  to 
establish  an  alibi,  though  not  sufficient 
to  work  an  acquittal  should  not  be 
excluded  from  the  case,  for  the  burden 
of  proof  never  shifts,  but  rests  upon 
the  commonwealth  throughout,  upon 
all  the  evidence  given  in  the  cause, 
taken  together,  to  convince  the  jury, 
beyond  a  reasonable  doubt  of  the 
prisoner's  guilt." 


§  149  alibi.  185 

on  the  state,  but  is  sufficiently  sustained  by  its  prima  facie 
case.  The  issue  of  the  defendant's  guilt  then  turns  upon  other 
essentials,  and  the  necessity  for  evidence  directly  applicable  to 
the  issue  of  place  does  not  arise. 

§  149.  Distance  and  period  of  absence. — It  is  never  neces- 
sary to  show  that  the  accused  was  elsewhere  at  the  instant  of 
the  offense  or  during  the  whole  of  it,  if  it  is  a  lengthy  transac- 
tion. The  important  and  necessary  facts  to  be  considered  in 
alibi  evidence  are  the  distance  between  the  scene  of  the  crime 
and  the  prisoner's  whereabouts;  the  time  of  the  former,  as 
compared  with  that  of  the  alibi ,  allowing  for  differences  in 
time-pieces,  and  in  opinions  respecting  time;  and  the  available 
means  and  celerity  of  travel.1  The  farther  away  the  accused 
was  the  more  doubtful  is  his  guilt,  until  mere  distance  becomes 
conclusive  if  so  great  as  to  render  participation  impossible.  If 
he  could  have  participated,  though  remote,  distance,  though 
relatively  great,  is  not  conclusive,  but  time  and  means  of  travel 
must  also  be  considered.2  The  evidence  of  the  alibi  may  fairly 
be  required  to  cover  the  whole  time  of  the  transaction  in  ques- 
tion, and  it  has  been  held  also  that  the  accused  may  be  re- 
quired to  show  his  whereabouts  during  such  a  period  as  will, 
b}^  its  length,  convince  the  jury  that  it  was  absolutely  impos- 
sible for  him  to  have  been  on  the  scene  of  the  crime  when  it 
was  committed.3  This  seems  almost  equivalent  to  requiring 
him  to  prove  his  innocence  beyond  a  reasonable  doubt.  Hence 
it  is  generally  sufficient  if  the  evidence,  though  not  completely 
covering  the  time  of  the  transaction,  shall  tend  fairly  to  show 
that  he  was  elsewhere  at  the  moment  of  the  crime,  and  that  he 
remained  there  such  a  period  of  time  as  will  reasonably  exclude 

1  Klein  v.  People,  113  111.  596,  599-  People,  39  111.  457,  464;  Howard  v. 
602.  State,  50  Ind.  190.     Where  defendant 

2  State  v.  Fenlason,  78  Me.  495,  502.  was  charged  with  burning  hay  stacks 

3  Beaver  v.  State,  103  Ala.  36,  15  which  were  some  distance  apart,  the 
So.  Rep.  616;  Wisdom  v.  People,  11  evidence  should  cover  the  whole  time, 
Colo.  170, 175, 17  Pac.  Rep.  519;  Brice-  so  as  to  render  it  very  improbable 
land  v.  Com.,  74  Pa.  St.  463,  469;  that  the  defendant  could  have  burned 
Ware  v.  State,  67  Ga.  349;  Miller  v.  them.     Creed  v.  People,  81  111.  565. 


L86  CRIMINAL    EVIDENCE.  §  150 

the  probability  that  he  was  in  the  place  of  the  crime  when  it 
was  committed.1  The  length  of  the  period  is  for  the  jury  to 
determine  upon  the  facts,  including  the  distance  and  the  time 
and  customary  mode  of  travel.2  If  the  time  necessary  to  go 
from  the  place  of  the  alibi  to  the  place  of  the  crime  is  in  issue, 
a  witness,  who  has  traveled  from  one  to  the  other,  may  state 
the  time  occupied  and  at  what  gait  he  walked.3  Dissimilarity 
of  conditions  and  modes  of  travel  may  affect  the  weight,  but 
not  the  competency  of  such  evidence.4  If  the  precise  time  a 
train  left  a  certain  place  on  a  certain  date  is  material,  the  evi- 
dence of  the  railroad  officials  that  the  company's  rules  do  not 
permit  trains  to  arrive  before  their  schedule  time  is  inadmissi- 
ble as  hearsay.5 

§  150.  Relevancy  of  evidence. — The  accused  may  prove  he 
conversed  with  persons  who  were  at  the  place  where  he  claims 
to  have  been,  and  may  give  a  general  outline  of  what  was 
said.  But  he  can  not  give  all  the  details  of  what  was  said  on 
a  pretext  that  he  can  thereby  show  how  much  time  was  occu- 
pied in  the  conversation  as  measuring  the  period  of  the  alibi.6 
Evidence  that  residents  of  the  town,  where  the  defendant  is 
alleged  to  have  been,  asserted  from  the  time  of  his  arrest  that 
he  was  there  at  the  date  of  the  crime  is  inadmissible,7  nor  can 
he  show  that  he  was  in  the  habit  of  frequenting  the  locality  of 
the  alibi.8-    A  witness  called  to  prove  an  alibi  may  be  asked 

1  Where  an  alibi  depends  upon  the  the  alibi  should  cover  the  whole  time 
agreement  of  time-pieces,  a  disagree-  of  the  transaction,  though  it  may  be 
ment  of  a  few  minutes  being  vital,  properly  regarded  with  suspicion,  if 
a  disagreement  may  be  presumed,  it  does  not.  State  v.  Jaynes,  78  N. 
rather  than  to  assume  that  the  wit-  Car.  504,  506;  Henry  v.  State  (Neb., 
nesses  on  either  side  testified  falsely.  1897),  70  N.  W.  Eep.  924. 

Painter  v.  People,  147  111.  444.  3  People  v.  Kelly,  35  Hun   (N.  Y.) 

2  People  v.  Worden,  113  Cal.  569,  45    295,  305 ;  State  v.  Flint,  60  Vt.  304. 
Pac.   R.   844;    State   v.   Fenlason,   78        4  State  v.  Flint,  60  Vt.  304,  317. 

Me.  495,  502 ;  Johnson  v.  State,  59  Ga.  5  People  v.  Mitchell,  94  Cal.  550,  554. 

142,   144;  Pollard  v.  State,  53   Miss.  6  State  v.   Bedard,  65  Vt.  278,  284, 

410;  Stuart  v.  People,  42  Mich.   255,  26Atl.  Rep.  719,721;  Peoples.  Hare, 

261;    State  v.   Maher,   74    Iowa    77;  57  Mich.  505. 

West  v.  State,  48  Ind.  483,  485;   Al-  7  Schuster  v.  State,  80  Wis.  107,  118. 

britton  v.  State,  94  Ala.  76,  79;  State  8  State  v.  Wilkins,  66  Vt.  1,  28  Atl. 

v.  Powers,  130  Mo.  475.     It  is  not  ab-  Rep.  323. 
solutely  essential  that  the  evidence  of 


§  151  ALIBI.  187 

when  his  attention  was  called  to  the  charge  against  the  ac- 
cused, and  what  was  the  date  of  the  crime.  He  can  not  be 
asked,  however,  what  he  did  to  inform  the  prosecuting  at- 
torney of  the  whereabouts  of  the  accused.1 

§  151.  Impeaching  the  alibi — Defendant's  declarations. — The 

accused  may  be  asked  whom  or  what  he  saw  while  in  the  place 
he  swears  he  was,  and  the  state  may  then  show,  to  impeach 
him,  by  witnesses  who  were  present,  what  persons  or  things  were 
actually  to  be  seen  there.2  But  hearsay  evidence  that  on  the 
day  of  the  crime  the  accused  had  been  seen  in  the  locality 
where  it  was  committed  is  not  admissible.3  Nor  are  self-serv- 
ing declarations,  not  a  part  of  the  res  gestae,  received  to  prove  an 
alibi.  The  danger  of  permitting  the  accused  thus  to  fabricate 
evidence  for  himself  is  clear.  Hence,  his  statements  as  to  his 
whereabouts  made  on  returning  to  his  home  after  absence  cover- 
ing the  date  of  the  crime  are  inadmissible.* 

§  152.  Reasonable  doubt. — The  cases  generally  hold  that  the 
accused  need  not,  in  order  that  his  evidence  of  an  alibi  may  be 
considered  by  the  jury  sufficient  to  acquit  him,  establish  it  by 
a  preponderance  of  the  evidence.5  But  the  alibi  must  be  sus- 
tained by  credible  evidence  which  will  reasonably  satisfy  the 

1  Schuster  v.  State,  80  Wis.  107,  108.  4  State  v.  McCracken,  66  Iowa  569, 

2  People  v.  Gibson,  58  Mich.  368,  573.  "The  declaration  is  a  mere  nar- 
371.  If  the  description  of  other  wit-  ration  of  a  past  event.  It  is  offered 
nesses  agreed  with  defendant's,  it  to  prove  something  antecedent  to  the 
would  certainly  do  him  no  harm  ;  if  return  in  no  manner  pertaining  to  the 
it  disagreed  radically,  it  would  be  character,  motive  or  object  of  it." 
proper  for  the  jury  to  consider  it  as  a  5  State  v.  Eivers,  68  Iowa  611,  616; 
circumstance  bearing  upon  the  ques-  State  v.  Rowland,  72  Iowa  327,  328; 
tion  whether  he  saw  it  as  he  had  testi-  State  v.  Howell,  100  Mo.  628,  664; 
fied.  See,  also,  People  v.  La  Munion,  People  v.  Lee  Sare  Bo,  72  Cal.  623,  629 ; 
64  Mich.  709.  Walters  b.  State,  39  ( >hio  St.  215,  217; 

3  Com.  v.  Ricker,  131  Mass.  581,  583.  Miles  v.  State,  93  Ga.  117,19  S.  E. 
In  this  case  a  police  sergeant  was  per-  Rep.  805 ;  State  v.  Child,  40  Kan.  482, 
mitted  to  testify  that  a  police  officer  485.  Contra,  State  v.  Ward,  61  Vt. 
reported  to  him  that  he  had  seen  de-  153,  192;  State  v.  Fenlason,  78  Me. 
fendant  in  a  cei-tain  place  on  a  given  495,  502 ;  State  v.  Hamilton,  57  Iowa 
date.     Held  error.  596,  598. 


188 


CRIMINAL    EVIDENCE. 


§  152 


jury  of  the  truth  of  this  defense.1  What  evidence  will  be 
reasonably  satisfactory  depends  wholly  upon  the  circumstances 
of  each  case  as  disclosed  by  all  the  evidence,  the  jury  being  the 
sole  judges  of  its  weight  and  sufficiency.  If  it  clearly  and 
cogently  appears  that  the  accused  was  present  at  the  crime, 
proof  of  an  alibi  ought  to  be  equally  clear,  cogent  and  con- 
vincing.2 But  the  evidence  of  the  alibi,  even  though  not  clear, 
may,  with  other  facts,  raise  enough  doubt  to  acquit.  A  reason- 
able doubt  that  the  accused  was  present  at  the  time  and  place 
of  the  crime  is  a  reasonable  doubt  of  his  guilt.3  Hence,  to  re- 
quire the  fact  of  his  absence  to  be  fully  established  and  found 
as  a  fact  by  the  jury  is  to  disregard  all  evidence  falling  short 
of  full  proof  and  to  require  him  to  prove  the  alibi  beyond  a 
reasonable  doubt.  This  is  certainly  not  the  law.4  If  the  ac- 
cused succeeds  by  his  evidence  of  an  alibi  in  raising  a  reason- 
able doubt  in  connection  with  all  the  evidence  that  he  was 
present  he  should  be  acquitted.5 


zAckerson  v.  People,  124  111.563; 
Watson  v.  Com.,  95  Pa.  St.  418,  420, 
422;  Albritton  v.  State,  94  Ala.  76; 
Garrity  v.  People,  107  111.  162,  166. 
Contra,  Hoge  v.  People,  117  111.  35,  44; 
State  v.  Hardin,  46  Iowa  625,  628. 

2  Klein  v.  People,  113  111.  596. 

3  See  Harrison  v.  State,  83  Ga.  129, 
135 ;  People  v.  Fong  Ah  Sing,  64  Cal. 
253. 

4  People  v.  La  Munion,  64  Mich.  709 ; 
Briceland  v.  Com.,  74  Pa.  St.  463 ;  State 
v.  Jaynes,  78  N.  Car.  504;  Landis  v. 
State,  70  Ga.  651,  659,  660;  People  v. 
Fong  Ah  Sing,  64  Cal.  253,  255,  5  Cr. 
L.  Mag.  64;  State  v.  Sanders,  106  Mo. 
188,  195;  State  v.  Woolard,  111  Mo. 
248,  256,  20  S.  W.  Rep.  27 ;  State  v. 
Fenlason,  78  Me.  495,  502;  State  v. 
Howell,  100  Mo.  628;  People  v.  Pear- 
sail,  50  Mich.  233,  236;  Miles  v.  State, 
93  Ga.  117,  19  S.  E.  Rep.  805;  State  v. 
Hardin,  46  Iowa  625,  628. 

5  Kaufman  v.  State,  49  Ind.  248; 
Towns  v.  State  111    Ala.    1,   20  So. 


Rep.  598;  People  v.  Resh  (Mich., 
1896),  65  N.  W.  Rep.  99;  People  v. 
Pichette  (Mich.,  1897),  69  N.  W.  Rep. 
739;  Ware  v.  State,  59  Ark.  379,  392, 
27  S.  W.  Rep.  485;  State  v.  Reed,  62 
Iowa  40 ;  State  v.  Fry,  67  Iowa 475, 478 ; 
Binns  v.  State,  46  Ind.  311,  312;  Wat- 
son v.  Com.,  95  Pa.  St.  418,  422;  Klein 
v.  People,  113  111.  596,  599,  602;  Shee- 
han  v.  People,  131  111.  22;  French  v. 
State,  12  Ind.  670,  674,  675 ;  State  v. 
Ward,  61  Vt.  153, 192;  Com.  v.  Choate, 
105  Mass.  451 ;  State  v.  McCracken,  66 
Iowa  569 ;  State  v.  Jennings,  81  Mo. 
185;  Johnson  v.  State,  21  Tex.  App. 
368,  381;  State  v.  Reitz,  83  N.  Car. 
634,  635 ;  People  v.  Pearsall,  50  Mich. 
233 ;  People  v.  Fong  ah  Sing,  64  Cal. 
253,  255;  Ware  v.  State,  67  Ga.  349; 
Garrity  v.  People,  107  111.  162,  167; 
Beavers  v.  State,  103  Ala.  36,  15  So. 
Rep.  616;  Com.  v.  Webster,  5  Cush. 
295 ;  McLain  v.  State,  18  Neb.  154, 160 ; 
Ackerson  v.  People,  124  111.  563,  574. 
In  State  v.  Hamilton,  57  Iowa  596,  599, 


§  1.",:; 


ALIBI. 


189 


§  153.  Cautioning  the  jury. — It  is  proper  to  instruct  the 
jury  that  evidence  to  prove  an  alibi  should  be  subjected  to  a 
rigid  scrutiny.  This  is  true  of  all  evidence.1  Witnesses  may 
be  honestly  mistaken  in  or  forgetful  of  times  and  places,2  and  an 
alibi,  like  any  other  defense,  may  be  easily  fabricated.3  But  an 
alibi  is  as  legitimate  and  effective  a  defense  as  any.  While  the 
jury  may  not  disregard  other  evidence  and  concentrate  their 
attention  upon  the  issue  of  the  alibi,4  the  law  does  not  regard 
evidence  to  prove  an  alibi  with  any  greater  degree  of  suspicion 
than  any  other.5     It  is  therefore  an  invasion  of  the  province 


the  court  said,  by  Adams,  Ch.  J.,  dis- 
senting: "This  court  has  never  un- 
dertaken to  abrogate  the  rule  that  a 
reasonable  doubt  of  guilt  justifies  an 
acquittal.  It  has,  indeed,  recognized 
this  rule  in  the  very  cases  relied  upon 
by  the  majority,  as  holding  that  when 
the  defendant  relies  upon  proving  an 
alibi  he  must  prove  it  by  a  preponder- 
ance of  evidence.  Both  rules  can  not 
be  correct,  because  they  are  incon- 
sistent with  each  other.  No  jury  can 
follow  both.  Let  us  suppose  a  case 
where  the  alibi  does  not  preponder- 
ate, but  does  raise  a  reasonable  doubt 
of  guilt.  What  shall  a  jury  do?  If 
they  follow  the  instruction  that  the 
evidence  of  an  alibi  must  preponder- 
ate, they  must  convict  and  disobey 
the  instruction  as  to  the  reasonable 
doubt.  On  the  other  hand,  if  they 
follow  the  instruction  as  to  reasonable 
doubt,  they  must  acquit,  and  disobey 
the  instruction  adopted  by  the  major- 
ity as  to  the  evidence  of  an  alibi,  as 
being  the  established  doctrine  of  this 
court,  so  long  as  it  is  inconsistent 
with  another  rule  to  which  the  court 
still  adheres.  If  the  court  adopts  the 
rule  in  question  as  to  an  alibi,  then  to 
be  consistent  it  should  modify  the 
rule  as  to  reasonable  doubt.  The  rule 
as  modified  would  be  as  follows:  A 
reasonable  doubt  of  guilt  is  sufficient 


to  justify  an  acquittal,  unless  it  is 
raised  by  evidence  of  an  alibi,  and  if 
it  is  then  it  is  not  sufficient."  In  State 
v.  Taylor,  134  Mo.  109,  35  S.  W.  Rep. 
92,  the  jury  was  correctly  instructed 
that,  although  the  evidence  of  an  alibi 
falls  short  of  the  weight  of  moral  cer- 
tainty, yet  if  it  leaves  in  the  minds  of 
the  jury  such  a  doubt  or  uncertainty 
that,  if  taken  by  itself,  they  could  not 
find  for  or  against  an  alibi,  then  the 
jury  must  carry  such  doubt  into  the 
case  of  the  prosecution  and  array  it 
there  as  an  element  of  reasonable 
doubt,  beydnd  which  the  prosecution 
must  establish  guilt,  that  the  defend- 
ant is  entitled '^s  much  to  the  benefit 
of  such  doubt  as  to  any  other  doubt 
raised  by  the  evidence,  and  if  its 
weight  alone,  or  with  any  other  doubt, 
be  sufficient  to  raise  a  doubt  of  de- 
fendant's guilt,  the  jury  must  acquit. 

1  Albritton  v.  State,  94  Ala.  76 ;  State 
v.  Rowland,  72  Iowa  327,  329;  Com.  v. 
Webster,  5  Cush.  295,  319. 

2  State  v.  Blunt,  59  Iowa  468. 
'People  v.  Wong  Ah  Foo,  69  Cal. 

180,  183,  184,  10  Pac.  Rep.  375,  377. 

4  Prince  v.  State,  100  Ala.  144, 14  So. 
Rep.  409,  410. 

5  People  v.  Hare,  57  Mich.  505 ;  Peo- 
ple v.  Kelly,  35  Hun  295;  People  v. 
Lattimore,  86  Cal.  403,  405;  Albin  v. 
State,  63  Ind.  598,  600;  Sater  v.  State, 


100  CRIMINAL  EVIDENCE.  §  153 

of  the  jury  for  the  court  in  its  charge  to  instruct  them  that,  as 
a  rule  of  the  criminal  law,  the  defense  of  an  alibi  is  open  to 
great  and  manifest  abuse  because  of  the  comparative  ease  with 
which  testimony  to  support  it  may  be  fabricated,  or  that  this 
defense  is  often  resorted  to  by  those  who  are  guilty,  or  that 
perjury,  mistake,  contrivance  and  deception  are  frequently 
employed  and  involved  in  supporting  it.1  By  virtue  of  the 
application  of  the  principles  involved  in  the  rule  falsus  in  uno 
falsus  in  omnibus,  a  presumption  of  fact  may  arise  in  the  minds 
of  the  jurors  against  the  accused  when  he  is  detected  in  delib- 
erately giving  false  testimony  to  an  alibi.2  Especially  is  this 
the  case  where  he  has  but  a  single  defense.  But  aside  from 
deliberate  perjury  on  the  part  of  the  accused,  or  on  the  part  of 
one  of  his  witnesses  in  endeavoring  to  prove  the  alibi,  an  un- 
successful attempt  to  substantiate  this  defense  is  not  to  be  re- 
garded in  law  as  a  circumstance  of  much,  if  any,  weight 
against  the  accused.3 

The  deliberate  fabrication  of  evidence  is  always  a  circum- 
stance pointing,  though  never  conclusively,  to  the  guilt  of  the 
prisoner.4  But  the  mere  fact  that  the  prisoner  or  one  of  his 
witnesses  has  sworn  falsely  by  no  means  warrants  the  presump- 
tion that  the  evidence  of  the  state  is  in  all  respects  true.5  And 
generally  a  failure  by  the  accused  to  prove  an  alibi  does  not 
differ  in  its  effect  from  a  failure  on  his  part  to  prove  any  other 
material  fact  alleged  by  him.6  Where  there  is  any  evidence 
tending  to  prove  the  alibi,  it  is  sometimes,  though  not  univers- 
ally, held  to  be  reversible  error  for  the  court  to  refuse  to  charge 

56  Ind.  378 ;  Albritton  v.  State,  94  Ala.  Miller  v.  People,  39  111.  457 ;  People  v. 

76,79;  State  v.  Chee  Gong,  16  Ore.  Malaspina,  57  Cal.  628,  629;  Albritton 

534,538.  v.   State,   94   Ala.   76;    Com.   v.    Mc- 

1  State  v.  Chee  Gong,16  Ore.  534,  538 ;  Mahon,  145  Pa.  St.  413,  416 ;  Porter  v. 
Murphy  v.  State,  31  Fla.  166;  Dawson  State,  55  Ala.  95,  107. 

v.  State,  62  Miss.  241.     And  see  cases        4  State  v.  Ward,  61  Vt.  153. 

cited  in  last  note.  s  Sawyers  v.  State,  15  Lea  (Tenn.) 

2  State  v.  Johnson,  91  Mo.  439,  444,     694. 

445.  e  Miller  v.  People,  39  111.  457,  465. 

8  Parker  v.  State,  136  Ind.  284,  293 ; 


§153 


ALIBI. 


191 


specially  thereon,1  or    to    refuse    to    charge    expressly  that    a 
reasona Mr  doubt  may  arise  therefrom.2 

In  view  of  the  apparent  irreconcilable  conflict  of  opinion  as 
to  the  character  of  this  plea  and  of  the  right  of  the  court  to 
comment  upon  the  evidence  which  is  offered  to  sustain  it,  it  is 
advisable  for  the  court,  when  cautioning  the  jury,  to  accompany 
its  cautionary  admonitions  with  a  statement  that  the  alibi  is 
sufficiently  proved  by  the  accused  if  upon  all  the  issues  he  has 
succeeded  in  raising  a  reasonable  doubt  in  the  minds  of  the 
jurors  that  he  was  present  at  the  time  and  place  of  the  crime. 
That  fact  is  exclusively  for  the  jurors  to  determine.3 


1  Bennett  v.  State,  30  Tex.  App.  341, 
15  S.  W.  Rep.  405;  Fletcher  v.  State, 
85  Ga.  666,  667.  Contra,  State  u.Ward, 
61  Vt.  153,  194;  Conrad  v.  State,  132 
Ind.  254,  258.  If  the  alibi  turns  on  a 
question  of  disputed  identity,  a  sepa- 
rate instruction  on  the  former  is  un- 
necessary. Dale  v.  State,  88  Ga.  552, 
15  S.  E.  Rep.  287. 

2  Fleming  v.  State,  136  Ind.  149,  36 
N.  E.  Rep.  154. 

3  In  State  v.  Blunt,  59  Iowa  468,  the 
court  said:  "It  is  recognized  in  the 
law  that  the  defense  of  alibi  is  one 
easily  manufactured,  and  jurors  are 
generally,  and  properly,  advised  by 
the  court  to  scan  the  proofs  of  an  alibi 
with  care  and  caution.  *  *  That 
this  proposition  is  correct  there  can  be 
no  doubt.  It  accords  with  the  obser- 
vation of  every  one  in  criminal  cases. 
Besides  there  can  be  no  prejudice  in 


cautioning  the  jury  to  closely  and 
carefully  scan  the  proof  in  every  case. 
There  was  no  prejudice  to  the  defend- 
ant in  such  instructions."  So,  in  the 
case  of  Miller  v.  People,  39  111.  457: 
"Failing  to  prove  an  alibi  should 
have  no  greater  weight  to  convince 
a  jury  of  the  guilt  of  the  prisoner 
attempting  it  than  any  other  im- 
portant item  of  defense.  A  pris- 
oner is  entitled  to  rely  on  the  facts 
in  his  favor  he  may  suppose  he  is  able 
to  prove,  and  if  he  is  so  unfortunate 
as  to  fail  in  his  proof,  it  should  not, 
generally  speaking,  operate  to  his 
prejudice.  Proof  of  an  alibi  is  a  de- 
fense as  legitimate  as  any  other,  and 
the  court  should  not  say,  lest  it  preju- 
dice the  minds  of  the  jury,  that  failure 
to  establish  it  should  have  great  weight 
against  the  prisoner." 


CHAPTER  XIV. 


EVIDENCE    OF    INSANITY    AND    INTOXICATION. 


§  154.  Mental  capacity  to  know  right 
and  wrong  as  a  test  of  in- 
sanity. 

155.  Uncontrollable  impulse  and  in- 

sane delusions. 

156.  Presumption  of  continuance  of 

insanity. 

157.  Burden  of  proof  to  show  san- 

ity and  insanity. 

158.  Proof    of    insanity  beyond  a 

reasonable  doubt  not  re- 
quired. 

159.  The    character  and  range  of 

evidence  to  show  insanity. 

160.  Evidence  showing  the  appear- 

ance, conduct  and  language 
of  the  accused  after  the  crime 
— Evidence  of  insanity  in 
family  of  accused. 

161.  Non-expert  evidence. 


§162 


163. 


Non-expert  must  relate  in  evi- 
dence facts  on  which  his  im- 
pression is  based — Degree  of 
knowledge  required. 

Expert  evidence — What  con- 
stitutes an  expert — Physical 
examination  of  accused  to 
ascertain  sanity. 
164.  Evidence  of  voluntary  intoxi- 
cation— When  irrelevant. 

Insensibility  or  insanity  from 
indulgence  in  intoxicants 
may  be  shown. 

Evidence  of  intoxication  as 
bearing  on  a  specific  intent, 
or  on  premeditation. 

Mode  of  proving  or  disproving 
intoxication. 

Morphine  habit. 


165. 


166. 


167. 


168. 


§  154.  Mental  capacity  to  know  right  and  wrong  as  a  test  of 
insanity. — Every  man  is  presumed  by  the  law  to  be  sane  and 
responsible  for  his  actions  until  the  contrary  appears.  The 
authorities  are  by  no  means  harmonious  as  regards  the 
amount,  quality  or  degree  of  proof  which  will  be  required  to 
overcome  this  presumption.  But  the  tendency  of  the  most  re- 
cent cases  is  to  give  the  prisoner,  who  pleads  insanity  as  a 
defense,  every  reasonable  opportunity  to  secure  an  acquittal  by 
the  employment  of  the  means  which  modern  scientific  investi- 
gation, into  the  domain  of  mental  disease,  has  placed  within 
his  reach.  The  accused  must,  however,  according  to,  a  large 
majority  of  the  cases,  prove  that  "  he  was  laboring  under  such 

(192) 


§154 


EVIDENCE    OF    INSANITY    AND    INTOXICATION. 


193 


a  defect  of  reason  from  disease  of  the  mind  as  not  to  know"  (i.  e.t 
as  not  to  have  sufficient  mental  capacity  to  know)  "  the  nature 
and  quality  of  the  act  he  was  doing  ;  or,  if  he  did  know  it,  that 
he  did  not  know  he  was  doing  wrong."1  This  rule,  which  has 
been  followed  by  a  majority  of  the  cases  in  America,  may  be 
considered  as  a  settled  rule  regulating  the  degree  of  mental  de- 
rangement which  must  be  shown  in  a  criminal  trial  to  over- 
come the  presumption  of  sanity.2 


1  This  is  the  rule  laid  down  in  Mc- 
Naghten's  Case  in  1843,  10  01.  &  F. 
200.  In  that  case  the  court  said: 
"The  jurors  ought  to  be  told  in  all 
cases  that  every  man  is  presumed  to 
be  sane  and  to  possess  a  sufficient  de- 
gree of  reason  to  be  responsible  for  his 
crimes  until  the  contrary  be  proved  to 
their  satisfaction,  and  that  to  estab- 
lish a  defense  on  the  ground  of  insan- 
ity it  must  be  clearly  proved  that  at 
the  time  of  the  commitment  of  the 
act  the  party  accused  was  laboring 
under  such  a  defect  of  reason  from 
disease  of  the  mind  as  not  to  know 
the  nature  and  quality  of  the  act  he 
was  doing,  or,  if  he  did  know  it,  that  he 
did  not  know  he  was  doing  what  was 
wrong."  Again,  in  Moett  v.  People, 
85  N.  Y.  373,  380,  the  court,  by  Earl,  J., 
said:  "The  laws  of  God  and  the 
land  are  the  measure  of  every  man's 
act,  and  make  it  right  or  wrong,  and 
it  is  right  or  wrong  as  it  corresponds 
with  these  laws.  When  it  is  said  that 
a  prisoner  must  at  the  time  of.  the  al- 
leged criminal  act  have  sufficient 
capacity  to  distinguish  between  right 
and  wrong  with  respect  to  such  act,  it 
is  implied  that  he  must  have  sufficient 
capacity  to  know  whether  such  act  is 
in  violation  of  the  law  of-  God  or  of 
the  land,  or  both.  It  is  not  the  duty  of 
the  trial  judge  to  present  the  matter  to 
the  jury  in  every  possible  phase  and 
in  every  form  of  language  which  the 
ingenuity  of  counsel  can  devise." 
13— Ok.  Ev. 


EMangrum  v.  Com.  (Ky.,  1897),  39 
S.  W.  Eep.  703;  Mackin  v.  State  (N. 
J.,  1897),  36  Atl.  Rep.  1040;  People  v. 
Riordan,  117  N.  Y.  71,  75;  People  r. 
Downs,  123  N.  Y.  558,  565;  Tiffany  v. 
Com.,  121  Pa.  St.  165,  180;  Rudy  v. 
Com.,  128  Pa.  St.  500 ;  Howard  v.  State, 
50  Ind.  190;  State  v.  Wingo,  66  Mo. 
181,  183,  186;  Ogletree  v.  State,  28 
Ala.  693 ;  Tweedy  v.  State,  5  Iowa  433 ; 
State  v.  Flye,  26  Me.  312;  Stakes  v. 
Reysle,  53  N.  Y.  164;  People  v.  Potter, 
5  Mich.  1,  7;  Dale  v.  State,  10  Yerg. 
551;  Goodwin  v.  State,  96  Ind.  550, 
560;  Conway  v.  State,  118  Ind.  482, 
490;  Plake  v.  State,  121  Ind.  433,  435; 
Willis  v.  People,  32  N.Y.  715,  719 ;  Peo- 
ple v.  Taylor,  138  N.  Y.  398,  406 ;  State 
v.  Harrison,  36  W.  Va.  729,  744, 
755;  Flanagans.  People,  52  N.Y.  467, 
469,  470;  People  v.  Carpenter,  102  N. 
Y.  238,  250,  6.  N.  E.  Rep.  584 ;  State  v. 
Alexander,  30  S.  Car.  74,  84 ;  United 
States  v.  Holmes,  1  Clif.  (U.  S.)  98; 
State  v.  Pagels,  92  Mo.  300,  314 ;  State  v. 
Hockett,  70  Iowa  442 ;  Leache  v.  State, 
22  Tex.  App.  279,  308;  State  v.  Nixon, 
32  Kan.  205,  211,  212;  State  v.  Bran- 
don, 8  Jones  (N.  Car.)  463,  467,  468; 
People  v.  Hoin,  62  Cal.  120;  State  >•. 
Lawrence,  57  Me.  574,  577,  581 ;  Com. 
v.  Gerade,  145  Pa.  St.  289,  296;  Arm- 
strong v.  State,  30  Fla.  170,  205;  Jam- 
ison v.  People,  145  111.  357,  34  N.  E. 
Rep.  486;  State  v.  Murray,  6  Cr.  L. 
Mag.  255;  Stater.  Spence,  21  N.  J.  L. 
196,  206;  Genz  v.  State  (N.  J.,  1897) 
37  Atl.  Rep.  69. 


194  CRIMINAL  EVIDENCE.  §  155 

§  155.  Uncontrollable  impulse  and  insane  delusions. — Some 
recent  cases  have  departed  from  this  rule.  This  repudia- 
tion of  the  right  and  wrong  test  is,  doubtless,  due  to  the 
desire  of  the  judges  to  harmonize  the  legal  rules  which  deter- 
mine what  facts  must  be  proved  as  a  necessary  basis  for  an 
inference  of  insanity  with  the  views  of  the  medical  profession. 
In  almost  every  trial  where  sanity  is  in  issue,  medical  wit- 
nesses are  produced,  who,  viewing  the  question  of  sanity  from 
a  medical  standpoint,  give  evidence  tending  to  set  up  some 
other  test  than  that  of  a  capacity  to  distinguish  and  to  choose 
between  right  and  wrong.  It  is  well  recognized  that  the 
moral  sense  is  highly  developed  in  many  whose  mental  powers 
are  greatly  impaired,  and  that  some  faint  gleam  of  moral  judg- 
ment may  be  discovered,  even  in  the  most  idiotic.  The  medi- 
cal treatment  of  the  insane  in  asylum  proceeds  largely  upon 
the  theory  that  the  majority  of  such  persons  possess  the 
capacity  to  distinguish  between  right  and  wrong,  and  the 
testimony  of  medical  witnesses  is  very  apt  to  be  colored  thereby 
and  to  lead  the  jury  to  believe  that  other  elements,  than  a 
capacity  to  judge  of  the  moral  character  of  the  act,  are  to  be 
considered  in  determining  if  the  accused  was  insane.  Thus, 
it  is  said,  that  though  the  accused  may  have  been  capable 
of  appreciating  the  moral  character  of  bis  act,  and  may  have 
been  able  to  choose  the  right  and  to  avoid  the  wrong,  yet  he 
should  be  absolved  from  punishment  for  his  act  if,  knowing 
it  was  wrong,  he  was  prompted  to  do  it  by  some  uncontrolla- 
ble or  irresistible  influence,  or  was  under  some  insane  delu- 
sion that  made  him  choose  the  wrong  in  preference  to  the  right. 
After  the  jury  have  heard  such  a  statement  from  a  medical 
witness,  they  are  extremely  apt  to  be  puzzled  by  a  seemingly 
contradictory  instruction  setting  up  the  right  and  wrong  test. 
Accordingly  many  of  the  cases  have  held  that  though  the  evi- 
dence shows  the  defendant  had  capacity  to  know  the  right 
from  the  wrong  in  that  particular  case,  yet,  if  from  the  facts 
it  appears  that  he  was  acting  under   an  irresistible  impulse 


§   156  EVIDENCE    OF    INSANITY    AND    INTOXICATION.  195 

preventing  the  choosing  of  the  right  or  compelling  wrong- 
doing, he  should  be  acquitted.1 

§  156.  Presumption  of  continuance  of  insanity. — No  pre- 
sumption of  law  is  recognized  that  insanity  proved  to  exist  is 
always  continuous  down  to  the  date  of  the  crime.  The  presump- 
tion is  one  of  fact,  and  clearly  the  continuance  of  the  insanity 
depends  entirely  upon  the  nature  of  the  mental  malady.  In- 
sanity is  undoubtedly  often  chronic  and  permanent.  This  is 
the  case  in  congenital  mental  infirmity,  as  idiocy,  or  in  senile 
dementia,  and  it  may  require  very  clear  proof  to  overcome  the 
presumption  that  such  insanity  is  continuous.2  But  the  re- 
verse is  true  where  insanity  is  the  result  of  delirium,  ensuing 
from  physical  disease  or  indulgence  in  intoxicants.  The  cir- 
cumstances of  each  case  should  be  considered,  and  the  matter 
is  wholly  for  the  jury  to  determine  whether  a  mental  condition 
shown  to  exist  continued  down  to  any  specific  later  period.3 
Where  an  insane  person  has  lucid  intervals,  and  no  proof  of 
insanity  existing  at  the  instant  of  the  offense  is  offered,  it  will 
be  presumed  to  have  been   committed  during  a  lucid  interval.1 

§  157.    Burden  of  proof  to  show  sanity  and  insanity. — The 

cases  are  inharmonious  upon  the  question  on  whom  does  the 
burden  of  proof  rest  when  insanity  is  in  issue  in  a  crimi- 
nal trial?  The  prisoner's  sanity  is  an  essential  and  requisite 
ingredient  in  any  crime  with  which  he  may  be  charged,  for,  if 
his  mental  soundness  is  not  shown,  there  certainly  can  not  be 
a  criminal  intent  present  to  render  the  act  with  which  he  is 
connected  a  crime.  It  is  the  general  rule  that  the  state  has 
the  burden  of  proving  all  the  necessary  ingredients  of  a  crime, 

Larsons    v.    State,    81     Ala.     577  Goodwin  v.  State,  96  Ind.  550,  560; 

(leading  case) ;  State  v.  Jones,  50  N.  Wagner  v.  State,  116  Ind.  181,  187. 

II.   369;    Leache    v.   State,    22    Tex.  'Armstrong  v.  State,  30  Fla.   170, 

App.  279,  3  S.  W.  Rep.  539;  Dacey  v.  204;   Langdon  v.  People,  133  111.  382; 

People,  116  111.  555,  556,  6  N.  E.  Rep.  State  v.  Wilner,  40  Wis.  304;  State  v. 

165;    State    v.    Felter,    32    Iowa   49;  Reddick,   7   Kan.    143,    151;    State  v. 

Plake  v.  State,  121   Ind.  433,  435,  but  Lowe,  93  Mo.  547  ;  Whart.  Cr.  L.,  §  56. 

cf.  Grubb  v.  State,  117  Ind.  277,  280.  4  Leache  v.  State,  22  Tex.  App.  279, 

1  State  v.  Reddick,  7  Kan.  143,  151 ;  313 ;  1  Russell  on  Crimes,  p.  11. 


190  CRIMINAL  EVIDENCE.  §  157 

including  the  criminal  intention,  and  this  rule  logically  casts 
the  burden  of  proving  the  sanity  of  an  accused  person  upon 
the  prosecution  in  the  first  instance.1  We  must  distinguish 
clearly  between  the  burden  of  proof,  that  is,  the  obligation  im- 
posed upon  a  party  who  alleges  a  fact  to  establish  it  by  proof, 
and  the  mode  and  order  of  proof.2 

The  state  need  not  prove  the  prisoner's  sanity  by  positive 
and  direct  evidence.  Presumptions  often  stand  for  proof  until 
rebutted.  The  presumption  of  law  that  every  one  is  sane, 
which  holds  good  and  is  the  full  equivalent  of  express  proof 
until  it  is  rebutted,3  will  be  sufficient  to  sustain  the  burden  of 
proving  the  prisoner's  sanity  where  the  evidence  of  the  state 
suggests  nothing  to  the  contrary.  If  the  state  shall  prove, 
even  prima  facie,  that  the  accused  committed  an  act  which  is 
criminal  by  law,  and  no  other  evidence  is  given,  his  sanity 
will  be  presumed,  and  if  the  prisoner,  in  the  defense  made 
by  him,  offers  no  evidence  or  offers  unconvincing  or  unsatis- 
factory evidence  on  this  point,  his  sanity  may  be  regarded  as 
proved.4     When  the  accused  offers  evidence  tending  to  show 

1  Ford  v.  State  (Miss.,  1896),  19  So.  v.  State,  66  Ind.  94,  105-109;  Under- 

Eep.  665;  O'Connell  v.  People,  87  N.  hill  on  Ev.,  §  249.    Ante,  §§  23,  24. 

Y.   377;    People    v.   Holmes    (Mich.,  2People  v.  McCann,  16  N.  Y.  58,  66. 

1897),  69  N.  W.  Rep.  501;  People  v.  3Com.  v.  Gerade,   145  Pa.  St.  289, 

McCarthy,  115  Cal.  255,  46  Pac.  Rep.  297. 

1073;    Chase  v.   People,   40   111.   352,  4  Boiling  v.  State,  54  Ark.  588,602 
358;  Langdon  v.  People,  133  111.  382,  O'Brien  v.  People,  48  Barb.  274,  280 
403;  People  v.  McCann,  16  N.  Y.  58,  Armstrongs.  State,  30  Fla.  170,  197 
64,  67;  Walter  v.   People,    32  N.  Y.  O'Connell  v.  People,  87  N.  Y.  377,  384 
147;  Walker  v.  People,  88  N.  Y.  81,  Com.  v.  Gerade,  145  Pa.  St.  289,  296 
88;  State  v.  Davis,   109  N.  Car.  780;  297;  Dover.  State,  3  Heisk.  348,  371 
State  v.  West,  1  Houst.  Cr.  Rep.  371;  Walker  v.  People,  88  N.  Y.  81;  Casat 
State  v.  Bartlett,  43  N.  H.  224;  Ogle-  v.  State,  40  Ark.  511, 513,  523.  "  When 
tree  v.  State,  28  Ala.  693,  702;  Polk  v.  insanity  is  relied  on  as  a  defense,  it 
State,  19  Ind.  170,  172:  Armstrongs,  must  be  proved  to  the  satisfaction  of 
State,  30  Fla.  170,  204 ;  State  v.  Sehae-  the  jury ;  such  proof  may  be  furnished 
fer,  116  Mo.  96,  22  S.  W.  Rep.  447;  by  evidence  introduced  by  the  corn- 
State  v.  Coleman,  20  S.  Car.  441,  454;  monwealth  to  sustain  the  charge,  or 
Wright  v.  People,  4  Neb.   407,   410;  by  evidence  introduced  by  the   de- 
Com.    v.    Pomeroy,    117   Mass.     143,  fense.     The  commonwealth,  when  it 
148,  149,  followed  in  Davis  v.  United  has  proved  the  corpus  delicti,  and  that 
States,   160  IT.  S.  469,  16  S.  Ct.  353;  the  act  was  done  by  the  accused,  has 
State  v.  Johnson,  40  Conn.  136 ;  Guetig  made  out  its  case.    If  he  relies  on  the 


§  157 


EVIDENCE    OF    INSANITY    AND    INTOXICATION. 


19' 


insanity,  the  state  must  produce  evidence  in  rebuttal,  to  revive 
and  strengthen  the  presumption  of  sanity.  Then  the  duty  of 
proving  the  sanity  of  the  accused,  his  possession  of  mental 
capacity  and  sense  of  moral  responsibility,  is  deemed  to  be 
upon  the  state.  The  presumption  of  sanity,  having  been  over- 
thrown by  the  evidence  for  the  defense,  is  no  longer  to  be  con- 
sidered, but  the  prosecution  must  prove  the  sanity  of  the  ac- 
cused upon  the  whole  evidence  and  beyond  a  reasonable  doubt.1 
But  the  prevailing  rule  seems  to  be  that  an  allegation  that  the 
defendant  is  insane  is  a  statement  of  an  independent  fact,  and 
is,  in  its  nature,  a  plea  of  confession  and  avoidance.  Hence, 
if  insanity  is  pleaded  as  a  defense,  the  burden  of  proof  is  on 
the  defendant,  in  conformity  with  the  general  rule  that  he  who 
asserts  any  affirmative  fact  has  the  burden  of  proof.2 


defense  of  insanity,  he  must  prove  it 
to  the  satisfaction  of  the  jury.  If,  on 
the  whole  evidence,  they  believe  he 
was  insane,  they  will  acquit  on  that 
ground."  Boswell's  Case,  20  Gratt. 
860,  876. 

1  Where  habitual  insanity  was 
proved  by  the  defendant,  it  was  held 
that  the  state  must  prove  the  exist- 
ence of  a  lucid  interval  at  the  instant 
of  the  crime  by  direct  evidence.  Ford 
v.  State  (Miss.,  1896),  19  So.  Rep.  665. 

2  Boswell's  Case,  20  Gratt.  (Va.) 
860,  875;  State  v.  Starling,  6  Jones 
(N.  C.)  366;  People  v.  Myers,  20  Cal. 
518;  State  v.  Smith,  53  Mo.  267;  Mon- 
tag  v.  People,  141  111.  75,  30  N.  E.  Rep. 
337 ;  Walker  v.  People,  88  N.  Y.  81 ; 
McKenzie  v.  State,  26  Ark.  334,  340; 
State  v.  Stickley,  41  Iowa  232,  237 ; 
Dove  v.  State,  3  Heisk.  348,  371 ;  Com. 
v.Eddy  7  Gray  (Mass.)  583;  Bergin 
v.  State,  31  Ohio  St.  Ill ;  People  v. 
Travers,  88  Cal.  233,  238;  State  v. 
Coleman,  27  La.  An.  691,  692;  Meyers 
v.  Com.,  83  Pa.  St.  131 ;  Graham  v. 
Com.,  16  B.  Mon.  587;  People  v.  Tay- 
lor, 138  N.  Y.  398,406;  McLeod  v. 
State,  31  Tex.  Cr.  App.  331 ;  State  v. 


Pagels,  92  Mo.  300,  315;  Sanders  v. 
State,  94  Ind.  147,  148;  McDougal  v. 
State,  88  Ind.  24,  26;  Plake  v.  State, 
121  Ind.  433,  435;  Keener  v.  State, 
97  Ga.  388,  24  S.  E.  Rep.  28 ;  State  v. 
Wright,  134  Mo.  404,  35  S.  W.  Rep. 
1145;  Brotherton  v.  People,  75  N.  Y. 
159,  163;  People  v.  McCann,  16  N.  Y. 
58,  59;  State  v.  Scott  (La.,  1897),  21 
So.  Rep.  271;  People  v.  McCarthy, 
115  Cal.  255,  46  Pac.  Rep.  1073;  Loeff- 
ner  v.  State,  10  Ohio  St.  598 ;  United 
States  v.  McGlue,  1  Cur.  C.C.I;  State 
v.  Brandon,  8  Jones  (N.C.)  463;  Com. 
v.  Eddy,  7  Gray  583;  People  v.  Myers, 
20  Cal.  518.    Ante,  §§23,24. 

"  The  question  on  whom  is  the  bur- 
den of  proof  when  insanity  is  alleged 
is  one  of  some  difficulty.  It  lies  in  a 
narrow  compass.  The  difficulty  is  the 
starting  point.  By  some  it  is  main- 
tained that  sanity  is  an  essential  of 
the  crime  and  a  necessary  part  of  its 
definition,  and  that  it  must  be  proved 
to  the  jury  in  the  same  way  as  any 
other  part.  But  it  must  be  remem- 
bered that  we  start  with  the  presump- 
tion that  all  men  are  sane  and  re- 
sponsible for  their  acts,  in  the  same 


198 


CRIMINAL    EVIDENCE. 


§  158 


§  158.  Proof  of  insanity  beyond  a  reasonable  doubt  not  re- 
quired.— If  it  be  granted  that  the  defendant  has  the  burden  of 
proving  his  insanity,  it  remains  to  be  considered  what  amount 
or  degree  of  proof  is  sufficient.  The  safest  rule,  and  one  that 
is  sustained  by  a  large  majority  of  the  cases,  is  that  a  reason- 
able preponderance  of  evidence  upon  this  particular  point 
should  acquit  the  defendant.1  Though  this  is  a  general  rule, 
the  verbal  forms  in  which  it  has  been  expressed  have  resulted 
in  throwing  the  matter  into  some  confusion.  Thus  it  has  been 
said  that  insanity  must  be  established  to  the  entire  or  reason- 
able satisfaction  of  the  jury,  or  by  evidence  satisfactory  to 
them,  or  which  satisfies  their  minds  or  clearly  preponderating. 
Such  expressions  are  misleading  and  may  be  construed  to 
mean  that   insanity  must  be  established  by  proof   beyond   a 


way  that  we  start  with  the  proposition 
that  no  man  can  legally  do  that  which 
is  a  crime.  All  the  elements  which 
enter  into  the  definition  of  any  crime 
assume  a  responsible  agent  to  exist, and 
sanity  is  assumed  and  treated  as  an 
essential  attribute  of  crime.  The  in- 
dictment says  nothing  of  his  capacity, 
and  as  it  is  only  as  regards  the  facts 
therein  alleged,  that  he  is  presumed 
innocent,  they  must  be  proved  and 
nothing  more.  By  a  plea  of  not  guilty 
alone  he  has  the  negative  of  the  issue. 
If  he  shall  plead  insanity,  he  assumes 
the  affirmative,  for,  though  such  a  plea 
is  usually  coupled  with  a  plea  of  not 
guilty,  it  is,  strictly  speaking,  a  con- 
fession and  avoidance.  It  admits  the 
allegations  of  the  indictment,  but 
claims  that  the  accused  is  mentally 
irresponsible.  It  raises  an  affirma- 
tive issue  outside  of  the  indictment. 
Even  so  far  as  malice  is  concerned, 
using  that  word  in  its  legal  sense,  it 
can  not  be  said  that  the  plea  of  in^ 
sanity  denies  its  existence.  It  admits 
its  presence,  but  claims  the  accused 
was  mentally  unsound."  State  v. 
Lawrence,  57  Me.  574,  584. 


1  State  v.  Genz,  57  N.  J.  L.  459,  34 
Atl.  Rep.  816;  People  v.  Nino,  149 
N.  Y.  317,  43  N.  E.  Rep.  853;  State  v. 
Larkins  (Idaho,  1897),  47  Pac.  Rep. 
945;  States.  Scott  (La.,  1897),  21  So. 
Rep.  271 ;  King  v.  State  (Miss.,  1897), 
21  So.  Rep.  235 ;  State  v.  Redemeier,  71 
Mo.  173,  176;  Graves??.  State,  45  N.  J. 
L.  347,  360;  Fisher  v.  State,  30  Tex. 
App.  502,  18  S.  W.  Rep.  90;  Ford  v. 
State,  71  Ala.  385;  State  v.  Felter,  32 
Iowa  49, 54;  Peoples.  McCann,  16  N. 
Y.  58;  People  v.  McElvaine,  125  N.  Y. 
596;  State  v.  Coleman,  20  S.  Car.  441, 
454;  Polk  v.  State,  19Ind.  170;  Loeff- 
ner  v.  State,  10  Ohio  St.  598,  616; 
Green  v.  State,  88  Tenn.  614;  Smith 
v.  State,  19  Tex.  App.  95,  111;  Gra- 
hams Com.,  16  B.  Mon.  (Ky.)  587; 
People  v.  Myers,  20  Cal.  518;  People 
v.  Bawden,  90  Cal.  195,  199;  Com.  v. 
Gerade,  145  Pa.  St.  289,  296;  Com.  v. 
Rogers,  7  Mete.  (Mass.)  500;  Dove  v. 
State,  3  Heisk.  348,  373;  Hoppo  v. 
People,  31  111.  385;  Langdon  v.  Peo- 
ple, 133  111.  382,  403.  See,  also,  7  Crirn. 
Law  Mag.  431. 


§  159 


EVIDENCE    OF    INSANITY    AND    INTOXICATION. 


l'.ll) 


reasonable  doubt.  This,  however,  is  not  required.  Reason- 
ably, not  extraordinarily,  clear  and  substantial  proof  is  re- 
quired. Evidence  fairly  preponderating  is  necessary,  but  never 
proof  beyond  a  reasonable  doubt.1  To  state  this  doctrine  in 
another  way  by  which,  perhaps,  the  lack  of  harmony  and  the 
confusion  in  the  authorities  may  be  avoided,  while  the  burden 
of  proof  to  show  insanity  is  on  the  defendant,  yet  if  he  introduces 
evidence  on  that  point  sufficiently  preponderating  to  raise  a 
reasonable  doubt  in  the  minds  of  the  jury  it  is  their  duty  to 
acquit.2 

§  159.    The  character  and  range  of  evidence  to  show  insanity. 

— Evidence  to  show  insanity  is  not  confined  to  evidence  of  the 
mental  condition  of  the  accused  at  the  instant  of  the  act, 
though  whatever  facts  are  adduced  must  tend  to  show  his 
mental  state  at  that  moment.  Mind  can  only  be  known  by 
outward  acts.  By  these  we  read  the  thoughts,  the  motives 
and  the  emotions,  and  as  one's  acts  conform  to  the  practice  of 
people  of  sound  mind  or  contrast  therewith  we  form  our  judg- 


1  Walker  v.  People,  88  N.  Y.  81; 
Smith  v.  State,  31  Tex.  Cr.  Rep.  14,  9 
B.W.  Rep.  274;  Com.  v.  Gerade,  145 
Pa.  St.  289,  298;  Coyle  v.  Com.,  100 
Pa.  St.  573;  People  v.  Bawden,  90 
Cal.  195,  199.  Contra,  State  v.  Spen- 
cer, 21  N.  J.  L.  196,  200. 

2Brotherton  v.  People,  75  N.  Y.  159, 
163;  Casey  v.  People,  31  Hun  158; 
Armstrong  v.  State,  30  Fla.  170,  196. 
See,  also,  17  Am.  Law  Rep.  922,  10 
Crim.  Law  Mag.  182.  In  Brotherton 
v.  People,  75  N.  Y.  159,  the  court,  by 
Church,  C.  J.,  remarks  as  follows: 
"  Crimes  can  only  be  committed  by 
human  beings  who  are  in  a  condition  to 
be  responsible  for  their  acts,  and  upon 
this  general  proposition  the  prisoner 
holds  the  affirmative  and  the  burden 
of  proof  is  upon  him.  Sanity  being 
the  normal  and  usual  condition  of 
mankind,  the  law  presumes  that  every 
individual  is  in  that  state.     Hence  a 


prosecutor  may  rest  upon  that  pre- 
sumption without  further  proof.  Who- 
ever denies  this  or  interposes  a  de- 
fense based  on  its  untruth  must  prove 
it;  the  burden,  not  of  the  general 
issue  of  crime  by  a  competent  person, 
but  the  burden  of  overthrowing  the 
presumption  of  sanity  and  of  showing 
insanity  is  upon  the  person  who  al- 
leges it,  and  if  evidence  is  given  tend- 
ing to  establish  insanity,  then  the 
general  question  is  presented  to  the 
court  and  jury,  whether  the  crime,  if 
committed,  was  committed  by  a  per- 
son responsible  for  his  acts,  and  upon 
this  question  the  presumption  of  san- 
ity, and  the  evidence,  are  all  to  be 
considered,  and  the  prosecutor  holds 
the  affirmative,  and  if  a  reasonable 
doubt  exists  as  to  whether  the  pris- 
oner is  sane  or  not,  he  is  entitled  to 
the  benefit  of  the  doubt,  and  to  an 
acquittal." 


200  CRIMINAL  EVIDENCE.  §  160 

ment  of  sanity.  Evidence  is  competent  to  prove  conduct  and 
language  at  various  times  and  places  indicating  an  unhealthy 
mental  condition,  and  the  more  extensive  the  view,  the  safer 
is  the  determination  reached.  It  is  proper  to  allow  consider- 
able latitude  in  the  examination  of  the  witness.1  All  the  pre- 
vious mental  and  physical  history  of  the  accused  is  relevant 
as  an  inference  of  insanity  must  rest  upon  many  facts.2  It 
may  always  be  shown  that  he  was  insane  prior  to  the  .crime,3 
and,  though  this  fact  is  never  conclusive  of  his  insanity  at 
the  date  of  the  crime,  it  may  be  received  as  tending  to  render 
the  truth  of  independent  evidence  of  that  fact  more  probable.4 

§  160.  Evidence  showing  the  appearance,  conduct  and  lan- 
guage of  the  accused  after  the  crime — Evidence  of  insanity  in 
family  of  accused. — The  appearance  and  conduct  of  the  accused 
while  testifying  may  be  considered  by  the  jury,5  aided  by  the 
opinions  of  experts  thereon.  The  hideous,  unnatural  and 
barbarous  character  of  the  crime,  or  the  absence  of  adequate 
motive,  though  either  may  be  shown  and  be  considered  by 
the  jury,6  does  not  alone  justify  an  inference  of  insanity.7  The 
demeanor  of  a  prisoner  after  a  homicide  perpetrated  by  him, 
his  coolness  and  lack  of  regret  for  his  act,  his  physical  appear- 
ance and  condition,  his  language  showing  a  motive  or  the 
lack  of  one,  his  attempt  to  conceal  his  crime  or  to  escape,  or 
his  open  boast  that  he  committed  the  homicide  and  the  reason 
for  it,  may  be  proved  to  show  his  mental  condition.  None  of 
these  facts  is  conclusive  however,  and  the  jury  may  discredit 
them  and  find  the  accused  guilty.8     Indeed  isolated  facts  are  of 

1  Dejarnette  v.  Com.,  75  Va.  867.  6  Com.  v.  Buccieri,  153  Pa.  St.  535, 

2Guiteau's  Case,  10  Fed.  Rep.  161,  536,  544. 

167.  'United  States  v.   Lee,   4  Mackey 

3  People  v.  Wood,  126  N.  Y.  249,  257,  489 ;  State  v.  Stark,  1  Strobh.  (S.  Car.) 

27  N.  E.  Rep.  362,  365;  United  States  L.  479;  United  States  v.  Guiteau,  10 

v.  Guiteau,  10  Fed.  Rep.  160,  172.  Fed.  Rep.  161,  168. 

4Spencer  v.  State,  21  N.  J.  L.  196,  8  Com.  v.   Gerade,    145  Pa.  St.  289, 

203;    State  v.  Newman,  57  Kan.  705,  297;  State  v.  Jones,  64  Iowa  349,  354; 

47  Pac.  Rep.  881.  Sanchez  v.  People,  22  N.  Y.  147;  Peo- 

5  Com.  v.  Buccieri,  153  Pa.  St.  535.  pie  v.  Thurston,  2  Park.  Cr.  Cas.  (N. 

Y.)  49;  Jacobs  v.  Com.,  121  Pa.  St. 


§  1()1  EVIDENCE    OF    INSANITY    AND    INTOXICATION.  201 

little  weight  to  prove  insanity  if  a  person  has  been  generally 
considered  sane,  for  it  may  be  that  the  peculiar  or  eccentric 
conduct  was  caused  otherwise  than  by  mental  weakness. 
Thus,  ii  the  insanity  is  claimed  to  have  been  the  result  of 
epilepsy,  and  the  accused  states  that  he  frequently  fell  to  the 
ground  in  a  fit  and  lay  for  some  time  unconscious,  the  state 
may  be  permitted  to  produce  witnesses  who  knew  him  well 
and  who  had  often  seen  him  in  a  drunken  stupor.1 

On  the  other  hand,  the  jury  may  consider  the  cunning  and 
sagacity  displayed  by  the  accused  in  planning  the  crime,  the 
promptitude  and  courage  shown  in  using  a  deadly  weapon 
and  the  skill  exhibited  in  effecting  an  escape.  Evidence 
that  the  accused  was  generally  reputed,  prior  to  the  commis- 
sion of  the  alleged  crime,  to  be  of  unsound  mind  is  not 
admissible,  being  hearsay  merely.8  It  may  be  shown  that  an 
ancestor  or  the  progeny  of  the  accused  was  insane  if  there  is 
independent  evidence  directly  tending  to  show  he  is  insane,3 
but  evidence  of  insanity  in  the  family  is  irrelevant  and  may 
be  excluded,  if  it  is  not  also  shown  that  the  insanity  was 
hereditary.4  The  cause  of  such  insanity  is  always  relevant  to 
prove  it  was  not  hereditary.5 

§  161.  Non-expert  evidence. — By  the  weight  of  authority, 
a  non-expert  witness  who  has  had  adequate  means  of  becoming 
acquainted  with  the  mental  state  of  a  person  whose  sanity  is  in 
issue  may  give  his  opinion  upon  the  question  whether  such 
person  was  insane  at  the  time  of  a  specific  occurrence  which  is 
also  in  evidence.6     He  may  not  state  his  present  opinion  as  dis- 

586,   15   Atl.   Rep.  465.     See   §§116-  Baxt.    (Tenn.)    615,   618;     Guiteau's 

120.  Case,   10  Fed.   Rep.    161 ;    People  v. 

1  Com.  v.  Buccieri,  153  Pa.  St.  535.  Garbutt,  17  Mich.  7,  17. 

2  Brinkley  v.  State,  58  Ga.  296 ;  Peo-  4  Walsh  v.  People,  88  N.  Y.  458. 
pie  v.  Pico,  62  Cal.  50;  Walker  v.  5 State  v.  Hoyt,  47  Conn.  518. 
State,  102  Ind.  502,  507  ;  State  v.  Hoyt,  6  State  v.  Williamson,  106  Mo.  162, 
47  Conn.  518;  Choice  v.  State,  31  Ga.  171;  Phelps  v.  Com.  (Ky.,  1896),  32 
424.  Cf.  State  v.  Leuth,  5  Ohio  Cir.  S.  W.  Rep.  470;  Pflueger  v.  State,  46 
Ct.  Rep.  94,  2  Greenl.  §371.  Contra,  Neb.  493,  64  N.  W.  Rep.  1094;  State 
State  v.  Windsor,  5  Harr.  (Del.)  512.  v.   Genz,  57  N.  J.  L.  459,  34  Atl.  Rep. 

sShaeffer  v.  State,  61  Ark.  241,   32    816;  People  v.  Strait,  148  N.  Y.  566, 
S.  W.   Rep.  679;   Hagan  v.   State,   5    42  N.  E.' Rep.  1045;  Dove  v.  State,  3 


202 


CRIMINAL    EVIDENCE. 


§162 


tino"uished  from  the  opinion  he  had  or  the  impression  made 
upon  his  mind  at  the  time  of  the  occurrence  observed.1  He 
must  state  the  facts  first,  and  then  on  this  evidence  he  may  ex- 
press his  opinion  or  impression  formed  at  the  time  a*s  to  the 
sanity  of  the  accused.2 

§  162.   Non-expert  must  relate  in  evidence  facts  on  which 
his  impression  is  based — Degree  of  knowledge  required. — The 

opinion  of  a  non-expert,  on  facts  related  to  him,  is  never  re- 
ceived. But  where  he  has  seen  the  actions  of  the  person,  and 
conversed  with  him,  the  law  considers  it  easily  within  the 
mental  ability  of  any  ordinary  person  to  distinguish  the  men- 
tal condition  of  an  insane  person.  The  influence  and  value  of 
his  opinion  will  depend  largely  on  the  intelligence  he  shows  on 
his  examination,  and  upon  his  opportunities  for  acquiring  the 
knowledge  on  which  his  opinion  is  based.  And  his  previous 
personal  acquaintance  with  the  accused,  its  character  and  the 
length  of  time  it  existed,  his  freedom  from  bias  or  interest,  the 
absence  of  finely  spun  theories  from  his  conception'  of  the 
whole  matter,  the  fullness  of  the  facts  within  his  knowledge, 
and  the  accuracy  of  his  memory,  are  also  to  be  regarded  in  es- 
timating the  value  of  his  evidence.3     The  mental  unsoundness 


Heisk.  (Tenn.)  348,  367;  State  v. 
Maier,  36  W.  Va.  757;  Schlencker  v. 
State,  9  Neb.  241,  251;  Sage  v.  State, 
91  Ind.  141,  143;  Armstrongs.  State, 
30  Fla.  170,  201 ;  Boiling  v.  State,  54 
Ark.  588,  16  S.  W.  Rep.  658;  Mc- 
Clackey  v.  State,  5  Tex.  App.  320; 
Wood  v.  State,  58  Miss.  741,  743;  Peo- 
ple v.  Levy,  71  Cal.  618,  623;  State  v. 
Hayden,  51  Vt.  296;  Clark  v.  State, 
12  Ohio  483,  487;  People  v.  Conroy, 
97  N.  Y.  62.  See,  also,  Hardy  v. 
Merrill,  56  N.  H.  227,  and  Com.  v. 
Pomeroy,  117  Mass,  143,  overruling 
earlier  cases,  contra.  Patterson  v. 
State,  86  Ga.  70. 

1  O'Brien  v.  People,  36  N.  Y.  276, 
282;  Hickman  v.  State,  38  Tex.  190. 

Armstrong  v.  State,  30  Fla.  170, 


201;  State  v.  Williamson,  106  Mo. 
162,  171;  State  v.  Pennyman,  68  Iowa 
216 ;  Hoover  v.  State,  48  Neb.  184,  66 
N.  W.  Rep.  1117;  Com.  v.  Buccieri, 
153  Pa.  St.  535;  Ellis  v.  State,  33  Tex. 
Cr.  Rep.  86,  24  S.  W.  Rep.  894.  Where 
a  lay  witness,  after  describing  the 
symptoms  he  observed,  characterized 
a  man's  conduct  as  irrational,  expert 
testimony  showing  that  people  may 
exaggerate  such  symptoms  is  inadmis- 
sible. People  v.  Webster,  59  Hun  398, 
400. 

3  "It  is  true  a  non-expert  witness 
must  always  state  the  facts  upon 
which  he  bases  his  opinion  as  to  the 
mental  capacity  of  a  defendant  in  a 
criminal  prosecution ;  and  it  is  also 
true  that  it  must  appear  that  he  has 


§  1G2     EVIDENCE  OF  INSANITY  AND  INTOXICATION.       203 

or  derangement  of  the  accused  may  have  been  very  marked. 
It  may  have  been  so  apparent,  from  his  actions,  that  any  per- 
son, though  possessing  but  weak  and  inadequate  powers  of  ob- 
servation, may  be  as  competent  to  express  an  opinion  as  the 
most  skillful  and  learned  physician.  Here  it  may  be  said  that 
the  insanity  is  matter  of  fact  rather  than  of  opinion,  and  the 
testimony  of  the  witness  is  only  an  opinion  in  form.  If,  when 
stating  it  in  a  criminal  trial,  he  narrates  with  particularity  the 
minor  details  from  which  it  is  deduced  or  inferred,  and,  it  be- 
ing made  to  appear  that  he  was  personally  acquainted  with  the 
accused  for  a  long  time,  he  details  the  furious  acts  and  gest- 
ures, the  foolish  and  incoherent  talk,  or  the  absurd  and  un- 
natural conduct  of  the  accused,  there  can  be  no  objection  to  his 
adding  an  inference  that  any  man  would  draw  from  them, 
i.  e.,  that  the  accused  was  insane.  No  rule  can  be  laid  down  as 
regards  the  amount  of  knowledge  which  the  non-expert  witness 
must  possess.  The  weight  the  opinion  shall  have  is  for  the 
jury  alone.  If  he  has  full  knowledge  of  the  previous  life,  an- 
tecedents and  surroundings  of  the  prisoner  his  opinion  ought 
certainly  to  have  more  value  than  that  of  a  witness  who  has 
only  meager  knowledge  of  these  subjects.1  Whether  a  witness, 
who  is  a  non-expert,  is  competent  to  testify  to  insanity  is  for 
the  court  to  determine.  If  it  shall  appear  prima  facie  that  he 
did  not  have  sufficient  opportunities  for  observation  his  evi- 
dence may  be  excluded.2  It  is  not  error  to  charge  that  the  ev- 
idence of  a  physician,  who  has  examined  the  accused,  may  be 
given  greater  weight  than  that  of  a  non-expert  witness.3 

some  knowledge  of  the  acts  and  con-  opinion  at  all."    Coleeu.  State,  75  Ind. 

duct  of  the  accused.    The  extent  of  511,  514;  UnderhillonEv.,  §  197,  p.  285. 

his  knowledge  has  never  been  defined  1  McLeod  v.   State,   31   Tex.    Crim. 

and   we   can  not  frame  any   general  Rep.  331 ;   Armstrong  v.  State,  30  Fla. 

rule   which  will  determine  just  how  170,205;  Clark  v.  State,  12  Ohio  483, 

much   or  how    little   knowledge  will  489;   Colee  v.  State,  75  Ind.  511,  514  ; 

entitle  the  opinion  of  the  witness  to  Sage  v.  State,  91  Ind.  141;  Choice  v. 

admission.     *     *     *     The    court    can  State,  31  Ga.  424;  McClackey  v.  State, 

not  decide  whether  the  opinion  is  of  5  Tex.  App.  320;  Pflueger  v.  State,  46 

much   or  little   weight.     Its   duty    is  Neb.  493. 

merely  to  decide  whether  such  know!-  2Hite  v.  Com.   (Ky.,  1893),  20    S. 

edge  is  shown  and  such  facts  stated  as  W.  Rep.  217. 

entitle  the  witness  to    express    any  3  Blake  v.  Rourke,  74  Iowa  519. 


204  CRIMINAL  EVIDENCE.  §  163 

§  163.  Expert  evidence — What  constitutes  an  expert — Phys- 
ical examination  of  accused  to  ascertain  sanity. — When  the 
insanity  of  the  accused  is  in  issue,  the  opinions  of  competent 
physicians  or  of  expert  alienists  are  generally  admissible.  The 
opinion  given  may  be  brought  out  by  a  hypothetical  question 
containing  the  facts  proved,  or  assumed  to  be  proved,  on  one 
side  or  the  other,1  or  upon  knowledge  obtained  and  facts  ob- 
served by  the  witness  in  treating  or  examining  the  accused 
professionally.  Generally  an  expert  witness  will  not  be 
allowed  to  give  an  opinion  on  the  evidence,  unless  it  is  em- 
bodied in  a  hypothetical  question.  To  allow  this  would  be  to 
usurp  the  exclusive  province  of  the  jury  and  enable  him  to  de- 
cide upon  the  credibility  of  the  testimony.  But  an  expert 
witness  may,  where  the  evidence  is  not  conflicting,  and  if  he 
has  heard  all  of  it  bearing  on  insanity,  be  permitted  to  give 
his  opinion  as  regards  the  mental  condition  of  the  accused, 
based  upon  the  facts  in  evidence,  if  true.2  A  witness  to  be  re- 
garded as  an  expert  must  have  made  insanity  a  subject  of 
special  study.  He  should  also  have  had  such  practical  expe- 
rience in  the  care  and  treatment  of  the  insane  as  will  render 
him  conversant  with  the  subject  and  able  to  recognize  its  pecu- 
liar subtle  manifestations.3  But  it  has  been  held  that  if  he 
has  had  experience  in  treating  cases  of  insanity,  and  if  he  has 

1  Cowley  v.  People,  83  N.  Y.  464,  mitted  state  of  facts,  or  may  state 
470;  Dejarnette  v.  Com.,  75  Va.  867;  facts  within  his  knowledge  as  a  wit- 
State  v.  Pagels,  92  Mo.  300,  315;  Un-  ness  and  express  an  opinion  on  them; 
derhill  on  Ev.,  p.  287,  n.  4.  or  a  state  of  facts  supported  in  some 

2Sanchez  v.  People,  22   N.  Y.  147,  degree  by  the  evidence   might  be  as- 

154;  People  v.  Lake,  12  N.  Y.  358,  362;  sumed  on  which    he    may   give    an 

Com.  v.  Rogers,  7  Metcf.  (Mass.)  500;  opinion ;    if    the    assumed    facts   are 

State  v.  Wright,  134  Mo.  404,  35  S.  W.  proved  the  statement  of  the  opinion 

Rep.  550;  State  v.  Reidel  (Del.),  14  is  evidence,  otherwise  it  is  not  to  be 

Atl.   Rep.   968;  State   v.  Hayden,  51  considered.     It    is   not   necessary  in 

Vt.  296;  People  v.  Wood,  126   N.  Y.  stating  a  hypothetical  case  to  assume 

249,  27  N.  E.  Rep.  362,  366;  State  v.  all  the  facts  which  the  evidence  tends 

Baber,  74  Mo.  292;  State  v.  Hockett,  to  prove,  but  all  facts  assumed  must 

70  Iowa 442;  Com.  v.  Buccieri,  153  Pa.  be    supported    by    some     evidence." 

St.  535;  People  v.  Schuyler,  106  N.  Y.  Guetig  v.  State,  66  Ind.  94,  104-105, 

298,  305,  306,  12  N.  E.  Rep.  783;  Peo-  aud  cf.  Burt  v.  State  (Tex.,  1897),  40 

pie  v.  Smiler,  125  N.  Y.  717,  719.  "The  S.  W.  Rep.  1000. 

expert  may  give  an  opinion  on  an  ad-  'Reese  Med.  Juris.,  p.  19. 


§   itii  EVIDENCE    OK    INSANITY    AND    INTOXICATION.  205 

practiced  as  a  physician  and  surgeon,  he  is  not  incompetent 
because  he  has  not  made  insanity  a  special  study.1  In  the  ab- 
sence of  a  mandatory  statute  the  appointment  by  the  court  of  a 
physician  to  examine  an  accused  person,  alleged  to  be  insane 
at  the  time  of  his  arraignment,  is  wholly  discretionary,  and 
usually  the  necessity  for  the  examination  must  be  made  to  ap- 
pear.2 Where  the  expert  has  made  a  physical  examination  he 
may  be  required  to  describe  the  facts  and  symptoms  observed,3 
as  well  as  the  conversation  which  he  had  with  the  defendant,4 
but  he  can  not  be  allowed  to  narrate  what  the  attendants  said.5 
A  physician  who  has  examined  the  accused  may,  after  giving 
an  opinion  based  on  the  knowledge  thus  acquired,  be  asked  a 
hypothetical  question  upon  facts  occurring  prior  to  the  exami- 
nation,6 and  the  fact  that  the  witness  fears  his  opinion  in 
answer  to  such  question  may  be  influenced  by  the  facts  ob- 
served by  him  will  not  exclude  it.7  The  opinion  which  is 
expressed  by  the  expert  must  be  positive  in  form  and  charac- 
ter. If  he  can  not  or  will  not  give  such  an  opinion  his  doubts 
that  the  accused  was  sane,  or  his  conjectures  that  he  was  in- 
sane, must  be  rejected.8 

§  1 G4 .    Evidence  of  voluntary  intoxication — When  irrelevant. 

— At  common  law  voluntary  intoxication,  as  distinct  from 
mania  a  potu,  furnishes  no  excuse,  justification  or  extenuation 
for  a  crime  committed  under  its  influence.9     Intoxication  as  a 

1  State  v.  Reddick,  7  Kan.  143,  151.  6  People  v.  Lake,  12  N.  Y.  358,  362. 

2  People  v.   McElvaine,   125  N.  Y.  'People  v.  Schuyler,  43  Hun  (N.  Y.) 
596,   604,  608.    See,  also,  Webber  v.  88,  and  cases  cited,  n.  2,  p.  204. 
Com.,  119  Pa.  St.  223;  State  v.  Arnold,  8  Sanchez  v.  People,   22  N.  Y.  147, 
12  Iowa  479,  483 ;  People  v.  Ah  Ying,  154.    As  a  general  rule,  neither  books 
42  Cal.  18.  of    established    reputation,    whether 

3  Com.  v.  Gerade,  145  Pa.  St.  289,  written  by  physicians  or  lawyers,  nor 
291,  296;  White  v.  Bailey,  10  Mich,  statistics  on  the  increase  of  insanity, 
155 ;  Puyear  v.  Reese,  46  Tenn.  21.  can  be  read  to  the  jury.    Com.  v.  Wil- 

4  People  v.  Nino,  149  Nl  Y.  317,  43  son,  1  Gray  (Mass.)  337,  339. 

N.  E.  Rep.  853;  People  v.  Shattuck,  94  Bl.  Com.  25,  26;  1  Hale  P.  C  32; 

109  Cal.  673,  42  Pac.  Rep.  315.     Cf.  Bacon's  Maxims,  rule  5;   Garner  v. 

Davis  v.  United  States,  165  U.  S.  373,  State,  28  Fla.  113,  153;  Colee  v.  State, 

17  S.  Ct.  Rep.  360;  7  post,  §181.  75   Ind.    511,   515;    Hopt  v.    People, 

5  Heald  v.  Thing,  45  Me.  392,  396.  104  U.  S.  631,  633 ;  Goodwin  v.  State, 


206  CRIMINAL  EVIDENCE.  §  165 

mental  and  physical  condition  maybe  easily  simulated.  While 
if  the  accused  was  really  intoxicated  when  he  committed  the 
crime,  if  he  has  cast  aside  the  restraints  of  sobriety  and  volun- 
tarily contracted  madness,  his  drunken  condition  is  not  rele- 
vant to  excuse  him.  This  is  true  though  he  may  have  been 
in  a  frenzy  from  indulgence  in  drink,  for,  if  he  has  capacity 
remaining  to  appreciate  and  recognize  the  moral  character  of 
his  acts,  he  is  responsible.  Hence  evidence  of  mere  intoxica- 
tion voluntarily  acquired,  and  not  claimed  to  involve  mental 
derangement,  existing  when  the  crime  was  committed,  is  in- 
admissible where  its  sole  purpose  and  object  are  to  furnish  an 
excuse  for  or  extenuation  of  the  crime. 

§  165.  Insensibility  or  insanity  from  indulgence  in  intoxi- 
cants may  be  shown. — Evidence  of  intoxication  is  sometimes 
relevant,  not  strictly  as  a  defense,  but  to  show  the  condition, 
either  mental  or  physical,  of  the  prisoner.  Thus  if  the  bodily 
powers  of  the  accused  were  so  far  subjugated  by  his  indulgence 
in  intoxicating  drink,  or  in  stupefying  drugs,  that,  at  the  time 
of  the  crime  alleged,  he  was  physically  unable  to  make  the 
motions  involved  in  its  commission,  his  drunkenness  may  be 
proved  to  show  he  was  not  and  could  not  have  been  implicated 
in  the  crime.1  Evidence  of  intoxication  at  the  time  of  the  of- 
fense, or  prior  thereto,  is  admissible  under  a  plea  of  insanity 
caused  by  over-indulgence  in  intoxicating  liquors.  But  the 
fact  of  the  prisoner's  intoxication  is  mainly  relevant  to  show 
his  mental  condition.  It  is  never  conclusive.  The  question 
of  his  insanity  is  for  the  jury  to  determine  upon  all  the  cir- 

96  Ind.  550;  States.  Murphy,  118  Mo.  ing  for  a  limited  time,  it  is  just  as 

7;  McCook  v.  State,  91  Ga.  740;  Peo-  competent  evidence  to  show  he  did 

pie  v.  Rogers,  18  N.  Y.  9,  16-23;  Peo-  not  walk  during  the  time  he  was  in- 

ple  v.  Garbutt,  17  Mich.  9,  19;  Sand-  capable,  as  though  he  had  been  ren- 

ers  v.  State,  94  Ind.  147,  148 ;  Goodwin  dered  incapable  by  paralysis  of  his 

v.  State,  96  Ind.  550,  556;  Wagner  v.  limbs  from  some  cause  over  which  he 

State,    116  Ind.    181,  186;    Conley  v.  had  no  control.     The  cause  of  the  in- 

Com.  (Ky.,  1396),  32  S.  W.  Rep.  285;  capacity  is  immaterial;  the  material 

People  v.Miller,  114  Cal.  10, 45  Pac.Rep.  question  is,  was  he,  in  fact,  incapable 

986 ;  Com.  v.  Gentry,  5  Pa.  D.  Rep.  703.  of  doing  the  acts  charged?  "     Ingalls 

1,1  If  a  man  by  voluntary  drunken-  v.  State,  48  Wis.   647,  651,   4  N.  W. 

ness  render  himself  incapable  of  walk-  Rep.  785. 


§  166  EVIDENCE    OF    INSANITY    AND    INTOXICATION.  207 

cumstances.  His  prior  dissipation  and  actual  drunkenness  at 
the  date  of  the  crime  are  merely  facts  for  them  to  consider  in 
determining  whether  he  was,  at  the  instant  of  the  crime,  suf- 
fering from  such  a  degree  of  mental  unsoundness  as  to  destroy 
his  capacity  to  distinguish  between  right  and  wrong  in  that 
particular  case.1  A  witness  can  not  express  an  opinion  as  to 
whether  the  accused  can  or  can  not  control  his  appetite  for  in- 
toxicating drink.2 

§  166.  Evidence  of  intoxication  as  bearing  on  a  specific  in- 
tent or  on  premeditation. — Where  the  existence  of  a  particular 
specific  intent  is  necessary  to  constitute  a  given  act  a  crime, 
evidence  that  the  accused  was  intoxicated  when  he  committed 
the  alleged  criminal  act  is  relevant  to  show  the  accused  could 
not  have  entertained  the  intent.3  So,  where  one  is  indicted 
for  assault  with  intent  to  rob,4  to  commit  rape,  or  to  do  great 
bodily  harm,5  evidence  that  he  was  intoxicated  at  the  date  of 
the  assault  is  relevant  to  show  that  he  did  not  entertain  the 
intent  charged.6  If,  from  such  evidence  the  jury  are  con- 
vinced the  accused  was  so  intoxicated  as  to  be  unable  to  form 
the  specific  intent,  a  conviction  of  any  crime  other  than  sim- 
ple assault  must  be  reversed.  The  specific  intent  to  deprive 
the  owner  of  his  property,  as  well  as  the  taking  away,  are 
essential  ingredients  of  larceny.  If  it  can  be  shown  that  the 
accused  was  too  drunk  to  entertain  that  intent,  he  must  be 
acquitted.7     So,  the    defendant's    intoxication    is   relevant   to 

1  People  v.  Blake,  65  Cal.  275 ;  Erwin    Wood  v.  State,  34  Ark.  341 ;  Casat  v. 
v.  State,  10  Tex.  App.  700.  State,   40  Ark.  511.    The  burden  of 

2  Goodwin  v.  State,  96  Ind.  550,  566.     proof  is  on  defendant  to  show  such  in- 
8  State  v.  Zarn,  22  Ore.  591,  30  Pac.     toxication   as   will    negative    malice. 

Rep.    317;    Com.   v.   Hagenlock,  140  State  v.  Hill,  46  La.  An.  27. 

Mass.  125;  Cline  v.  State,  43  Ohio  St.  4  Scott  v.  State,  12  Tex.  App.  31,  39. 

332;   Reg.  v.   Moore,  3  C.  &  K.  319;  5  State    v.    Garvey,   11   Minn.    154. 

People  v.   Rogers,    18    N.   Y.   9,    17;  Contra,  Jeffries  v.  State,  9  Tex.  App. 

Wood  v.  State,  34  Ark.  341 ;  Garner  v.  598,  605. 

State,   28   Fla.   113,   155;    Aszman  v.  6  State  v.   Donovan,   61   Iowa  369; 

State,  123  Ind.  347  ;  People  v.  Walker,  State  v.  Fiske,  63  Conn.  388,  392;  State 

38  Mich.  156;  Peoples.  Odell,  1  Dak.  ».  Gut,  13  Minn.  341,  361;  People  v. 

197;    Mooney   ».    State,   33  Ala.  419;  Harris,  29  Cal.  678,  683. 

Chrisman  v.  State,  54  Ark.  283,  288;  7Ingalls  v.  State,  48  Wis.  647,  651; 


208  CRIMINAL  EVIDENCE.  §  166 

disprove  the  felonious  intention  which  must  be  present  in 
the  act  of  breaking  in  and  entering  to  constitute  burglary.1 
Evidence  of  intoxication  may  be  relevant  to  show  the  absence 
of  guilty  knowledge.  Thus,  the  existence  of  knowledge  of  the 
falsity  of  the  testimony  given,  when  perjury  has  been  committed, 
or  of  the  spurious  character  of  the  notes  or  money  forged  in  the 
crime  of  counterfeiting  may  both  be  rebutted  by  evidence  that 
the  mind  of  the  accused  was  so  overcome  by  drink  that  he  did  not 
possess  the  guilty  knowledge  necessary  to  these  crimes.2  But 
where  some  act,  innocent  in  itself,  as  for  example,  voting  more 
than  once  at  an  election,  is  made  criminal  by  statutes  if  volunta- 
rily done,3  or  where  no  specific  intent  is  required  by  law,  evidence 
of  intoxication  is  irrelevant.4  Sometimes  by  statute  the  exist- 
ence of  a  premeditated  design  to  cause  death  on  the  part  of  the 
accused  is  essential  to  constitute  a  homicide  murder  in  the  first 
degree.  In  such  case  drunkenness  is  relevant  and  may  be  con- 
sidered by  the  jury  to  determine  the  mental  condition  of  the 
accused,  that  is,  to  ascertain  whether  he  had  mental  capacity  to 
form  a  premeditated  design,  and  from  the  fact  of  his  drunken- 
ness they  may  infer  that  his  intellect  was  so  befogged  that  the 
formation  or  execution  of  a  deliberate  intention  or  a  premedi- 
tated design  to  kill  was  impossible.5  In  other  words  an  allega- 
tion that  the  accused  acted  with  premeditation  or  deliberation 
lets  in  evidence  that  he  was  intoxicated  at  the  time.     But  proof 

Wood  v.  State,  34  Ark.  341;  People  v.  Cummins,   47  Mich.  334;   Tidwell   v. 

Walker,  38  Mich.  156.     Contra,  Daw-  State,    70   Ala.    33;   Kelly  v.  State,  3 

son  v.  State,  16  Ind.  428,  439.  Smedes  &  M.    (Miss.)    518;    Com.  v. 

'See  §  397.      Breaking  in   and  en-  Dorsey,  103  Mass.  412;  Hailev.  State, 

tering.  11  Humph.  153 ;  People  v.  Belencia,  21 

2Pigman  v.   State,  14  Ohio  555,  557  Cal.  544;  State  v.  Johnson,  40  Conn, 

(counterfeiting);   Lytle   v.   State,   31  136;  Roberts  v.  People,  19  Mich.  401, 

Ohio  St.  196,  200  (perjury) .  417 ;  State  v.  Mowry,  37  Kan.  369,  377 ; 

3  State  v.  Welch,  21  Minn.  22,  26-28.  Bernhardt  v.  State,  82  Wis.  23;  Ma- 

4  People  v.  Marseiler,  70  Cal.  98,  100.  lone  v.   State,   49  Ga.  210;  Cluck  v. 
5 Garner  v.  State,  28  Fla.  113,  155;  State,  40  Ind.  263;  Peoples.  Rogers, 

Shannahan  t.  Com.,  8    Bush  (Ky.)  18  N.  Y.  9,  26;  Keenan  v.   Com.,  44 

463;  Boswell's  Case,  20  Gratt.  (Va.)  Pa.  St.  55;  State  v.  McCants,  1  Speers 

860;   Hopt  v.  People,  104  U.  S.  631;  (S.  Car.)  384;  State  v.  Robinson,  20 

State  v.  Donovan,  61  Iowa  369;  Scott  W.  Va.  713. 
v.  State,  12  Tex.  App.  31 ;  People  v. 


§   L67  EVIDENCE    OF    INSANITY    AND    INTOXICATION.  209 

of  his  intoxication  does  not,  as  matter  of  law,  rebut  a  presump- 
tion of  premeditation  arising  in  the  circumstances,  nor  is  an 
instruction  to  that  effect  warranted.  It  is  only  a  circumstance 
for  the  jury,  aud  its  effect  in  negativing  premeditation  is  for 
them,  as  they  measure  the  degree  of  intoxication  upon  all  the 
facts.1  Evidence  of  voluntary  intoxication,  not  producing  com- 
plete insensibility,  is  sometimes  relevant  and  may  be  considered 
by  the  jury  in  determining  the  meaningof,  and  motive  for,  words 
uttered,  as,  for  example,  to  determine  whether  threatening 
language  used  by  the  accused,  or  the  victim  of  a  homicide  was 
the  outcome  of  deliberate  hatred,  or  the  idle  vaporings  of  a 
drunken  man.2 

§  167.  Mode  of  proving  or  disproving  intoxication. — A  non- 
expert witness  may  testify  that  the  accused  or  some  other  per- 
son was  intoxicated  on  a  given  date,3  and  that  he  was  habitu- 
ally intemperate.4  Evidence  of  the  conduct  of  the  accused  on 
previous  occasions  when  he  was  intoxicated  is  competent  as 
bearing  on  his  intoxication  when  he  committed  the  crime 
charged,  and  as  illustrating  his  usual  manner  of  acting  when 
drunk.5  The  witness  will  not  be  permitted  to  testify  that  the 
defendant's  intoxication  was  or  was  not  sufficient  to  prevent 
the  formation  of  intent  or  premeditation,  as  that  is  a  question 
for  the  jury  alone.6  It  is  not  relevant  for  the  defense  to  show 
that  the  prisoner  had  liquor  in  his  house  which  he  might  have 
drunk,7  or  that  he  was  easily  affected  by  liquor  and  had  drunk 
more  than  usual,8  or  to  prove  experiments  made  with  liquor 

1  People  v.  Mills,  98  N.  Y.  176,  182.     vant,  117  Mass.  122 ;  Underhill  on  Ev., 

2  People  v.   Rogers,  18  N.  Y.  9,  19;     p.  269,  n.  4. 

Friery  v.  People,  54  Barb.  319,326;        4  Gallagher  v.  People,  120  111.  179, 

Hopt  v.  People,  104  U.  S.  631 ;  State  v.  182;  Smith  v.  State,  55  Ala.  1, 10;  Ta- 

Welch,  21  Minn.  22;  Davis  v.  State,  turn  v.  State,  63  Ala.  147,  150. 
25  Ohio  St.  369;  State  v.  Johnson,  40        5Upstone  v.  People,  109  111.  169, 175. 

Conn.  136.  .  Contra,  Com.  v.  Cloonen,  151  Pa.  St. 

3 People  v.  Sanford,  43  Cal.  29,  32,  33 ;  605. 
People  v.  Monteith,  73  Cal.  7;  People        6  Armor  v.  State,  63  Ala.  173,  176. 
v.  Eastwood,   14  N.  Y.  562;    State  v.        7  Com.  v.  Cloonen,  151  Pa.  St.  605. 
Pierce,  65  Iowa  85 ;    Com.  v.  Sturti-        8  State  v.  Smith,  49  Conn.  376. 
14 -Cr.  Ev. 


210  CRIMINAL  EVIDENCE.  §  108 

which  is  not  positively  identified  by  independent  evidence  as 
the  liquor  drunk  by  the  accused  prior  to  the  crime.1 

§  168.  Morphine  habit. — Though  habitual  indulgence  in 
morphine  is  by  no  means  as  common  as  indulgence  in  intoxi- 
cating liquors,  the  use  of  morphine,  cocaine  and  similar  drugs 
is  sufficiently  common  to  justify  an  inquiry  into  what  circum- 
stances evidence  of  their  use  is  competent.  The  habitual  use 
of  morphine  may  be  shown,  and,  if  proved,  is  a  circumstance 
for  the  jury  to  consider  in  determining  the  mental  condition  of 
the  accused.  If  on  all  the  circumstances  they  shall  determine 
that  the  faculty  of  understanding  the  moral  quality  of  the  act 
has  been  destroyed  by  the  use  of  the  deleterious  drugs  they 
should  acquit.  Many  petty  crimes  spring  from  the  morphine 
habit.  Those  who  use  it  habitually  will  resort  to  any  method, 
however  criminal,  to  attain  it,  such  as  forging  a  prescription 
for  it,  or  stealing  it  from  the  office  of  a  physician.  In  all 
such  cases,  evidence  of  experts  is  competent  to  show  the 
peculiar  symptoms  which  are  inseparable  from  the  continued 
use  of  the  drug.2 

1  People  v.  Slack,  90  Mich.  448.  *  System  of  Legal  Medicine,  vol.  2, 

p.  207. 


CHAPTER   XV. 


PRIVILEGED    COMMUNICATIONS. 


§  169.  Foundation  of  the  doctrine  and 
classification  of  communica- 
tions. 

170.  Executivecommunications  and 

transactions. 

171.  Communications  to  police  offi- 

cials. 

172.  Communications  to  attorneys 

at  law. 

173.  Communications  made  by  or  to 

the  agent  of  the  attorney. 

174.  Character  and  date  of  the  com- 

munications. 

175.  Communications  made  in  con- 

templation of  crime. 

176.  Permanency  of  the  privilege — 

Waiver. 

177.  Writings,  when  privileged. 

178.  Communications    to    spiritual 

adviser. 

179.  Communications    passing    be- 

tween medical  practitioners 
and  their  patients. 

180.  Death  of  the  patient — Purpose 

of  the  communication — Con- 
templated crime. 


§  181.  Communications  made  during 
an  examination  to  detect  or 
ascertain  sanity. 

182.  Secrecy  of  telegrams. 

183.  Indecency  of  the  facts  to  be 

proved. 

184.  Privileged  communications  be- 

tween husband  and  wife. 

185.  Husband  and  wife  as  witnesses 

in  criminal  proceedings. 

186.  Statutory  competency  of  hus- 

band and  wife. 

187.  Confidential     communications 

between  husband  and  wife. 

188.  Husband  or  wife  of  co-defend- 

ant as  a  witness  for  or  against 
his  associate  in  crime— Tes- 
timony of  husband  or  wife 
on  trial  of  a  third  person 
tending  to  criminate. 

189.  Valid  marriage  is  necessary. 

190.  Privilege  as  relating  to  the  evi- 

dence to  judicial  officers. 

191.  Privilege  as  relating  to  grand 

jurors. 

192.  Statutory    regulations    of    the 

competency  of  grand  jurors. 

193.  Evidence  of  traverse  jurors. 


§  169.  Foundation  of  the  doctrine  and  classification  of  com- 
munications.— The  welfare  of  society  and  the  proper  and  order- 
ly administration  of  justice  require  that  certain  evidence,  or, 
more  correctly  speaking,  the  evidence  of  certain  classes  of  wit- 
nesses, shall  be  absolutely  inadmissible.  The  advantage 
which  would  be  gained   in   punishing  any  particular  crime 

(211) 


212  CRIMINAL  EVIDENCE.  §  169 

would  be  more  than  counterbalanced  by  the  injury  to  society 
as  a  whole.  Thus  it  is  recognized  that,  because  of  the  com- 
plexity of  modern  jurisprudence,  both  criminal  and  civil,  any 
person  who  has  to  defend  himself  against  a  criminal  accusa- 
tion, or  to  protect  or  enforce  a  right,  must  secure  and  receive 
the  assistance  of  counsel  who,  because  of  their  skill  and  expe- 
rience, are  fitted  to  aid  and  advise  him.  To  enable  members 
of  the  legal  profession  to  render  efficient  aid,  and  to  bring  the 
matters  entrusted  to  them  to  a  successful  conclusion,  it  is  usu- 
ally an  absolute  necessity  that  the  client  should  make  a  full  and 
complete  disclosure  of  every  fact  bearing  on  the  criminal  trans- 
action. It  is  a  maxim  of  the  criminal  law  that  no  man  can  be 
compelled  to  testify  against  himself.  Hence,  no  fact  or  admis- 
sion can  with  justice  be  used  against  the  accused  which  he  was 
under  the  necessity  of  imparting  confidentially  to  his  counsel. 
The  law  regards  it  as  extremely  wise  to  encourage  and  sustain 
the  high  and  unlimited  confidence  which  should  exist  between 
persons  who  bear  the  peculiar  and  intimate  relations  towards 
one  another  of  attorney  and  client.  Upon  similar  considera- 
tions the  knowledge  acquired  by  a  physician  while  attending  a 
patient,  by  a  clergyman  during  the  performance  of  his  spirit- 
ual duties,  or  the  communications  passing  between  husband 
and  wife,  are  also  privileged.  Writers  upon  the  law  of  evi- 
dence,1 have  divided  privileged  communications  into  four 
classes,  viz.,  professional,  judicial,  political  and  social.  In 
the  first  class  are  included  disclosures  to  attorneys,  physicians 
and  priests.  Communications  privileged  because  of  their  judi- 
cial character  comprise  the  oral  deliberations  of  grand  and  trial 
juries,  the  evidence  given  before  the  grand  jury,  communica- 
tions passing  between  judges,  and  all  information  in  the  hands 
of  prosecuting  officials  or  others  which  leads  to  the  detection 
or  punishment  of  crime.  The  third  class,  or  political  commu- 
nications, is  composed  of  the  transactions  of  the  executive  de- 
partments of  the  government  and  all  communications  passing 
between  the  departmental  officials.     By  social  communications 

1  Best  on  Ev.,  578. 


§  170  PRIVILEGED    COMMUNICATIONS.  213 

are  meant  the  communications  passing  between  husband  and 
wife  in  the  intimacy  and  confidence  of  the  marriage  relation. 

These  restrictions  upon  the  capacity  of  certain  classes  of  pri- 
sons as  regards  the  evidence  which  they  will  be  allowed  to 
give,  are  not  founded  on  any  peculiar  respect  which  the  law 
entertains  for  their  calling  or  character.  They  have  their  ori- 
gin in  the  desire  to  procure  a  pure  and  unembarrassed  admin- 
istration of  the  law,  to  subserve  justice,  and  to  protect  the  inno- 
cent, while  securing  the  punishment  of  the  guilty. 

§  170.    Executive   communications   and   transactions. — The 

common  law  has  always  regarded  as  privileged  all  information 
in  the  possession  of  executive  officials  as  such  ;  and  has  uni- 
formly declined  to  compel  them  to  divulge  facts  of  which  they 
have  obtained  knowledge  in  any  official  capacity.  This  rule 
has  been  most  frequently  invoked  in  civil  cases.1  In  this 
country  the  various  executive  departments  of  the  government, 
both  federal  and  state,  acting  under  the  power  conferred  by  the 
legislative  branch  to  formulate  rules  for  the  proper  conduct  of 
departmental  affairs,  have  forbidden  their  subordinate  officials 
to  disclose  official  information,  unless  permitted  or  required  to 
do  so  by  their  official  superiors.  The  true  rule,  therefore,  now 
is  that  the  chief  executive  officer  is  the  sole  judge  of  the  pro- 
priety of  refusing  to  testify  or  producing  papers  and  of  permit- 
ting his  subordinates  to  do  so.2 

The  privilege  is  not  absolute  in  the  sense  that  professional 
communications  are  absolutely  privileged  and  can  not  be 
divulged.  Thus  the  governor  of  a  state  may  or  may  not  with 
perfect  propriety  refuse  to  state  his  reasons  for  signing  a  bill 
or  any  facts  which  were  communicated  to  him  in  connection 
with  his  action  in  the  premises.  And  no  valid  reason  exists 
why  he  may  not  testify  when  or  by  whom  it  was  delivered  to 
him,  for  that  is  a  bare  fact  implying  no  action  on  his  part. 
The  propriety  and  advisability  of  testifying  to  any  fact  which 

Thompson  v.  Germ.  Valley  R.  Co.,        s  1  Burr's  Trial,  182;  Gray  v.  Pent- 
22  N.  J.  Eq.lll,  113;  Totten  v. United    land,  2  S.  &  R.  (Pa.)  23,  31. 
States,  92  U.  S.  105,  107 ;  In  re  Hutt- 
nian,  70  Fed.  Rep.  699. 


214  CRIMINAL  EVIDENCE.  §  171 

the  executive  official  may  have  acquired  while  acting  in  an 
official  capacity  are,  however,  always  exclusively  for  his  de- 
termination.1 

§  171.  Communications  to  police  officials. — The  proper  ad- 
ministration of  justice  and  the  protection  of  society  against 
criminals  imperatively  require  that  persons  should  be  encour- 
aged in  performing  the  duty,  incumbent  upon  all,  of  communi- 
cating to  the  proper  officials  any  information  which  they  may 
possess  regarding  the  commission  of  a  crime,  or  the  identity  or 
whereabouts  of  the  criminal.  To  this  end  the  disclosure  in 
court  of  the  names  of  persons  who  gave  such  information, 
either  by  a  police  official  who  made  the  arrest,2  by  the  informer 
himself,  or  by  any  other  person,  will  not  be  permitted.8 

Under  the  original  rule  not  only  was  the  name  of  the 
informer  and  the  name  of  the  person  to  whom  information 
was  given  excluded,  but  every  communication  made,  or  act 
done,  leading  up  to  the  detection  of  a  crime,  or  to  the  appre- 
hension of  the  criminal,  was  excluded  from  being  given  in  evi- 
dence in  a  criminal  trial.4  This  is  doubtless  a  just  rule  in 
civil  cases  where  the  question  of  guilt  is  involved  collaterally, 
as  in  an  action  for  slander  or  libel  contained  in  a  communica- 
tion to  the  police.  But  when  the  question  arises  in  a  criminal 
trial,  and  the  information  is  material  to  determine  the  defend- 
ant's innocence,  it  would  seem  both  reasonable  and  just  that  the 
necessity  and  desirability  of  the  disclosure  and  the  question 
whether  the  public  interests  would  be  benefited  or  would  suffer, 
should  be  solely  for  the  judicial  discretion  upon  the  circum- 
stances of  the  case.5 

1  Appeal  of  Hartranft,  85  Pa.  St.  The  owner  of  stolen  property  is  not 
433,  447.  bound    to    disclose,   on    the  witness 

2  United  States  v.  Moses,  4  Wash.  C.  stand,  the  names  of  persons  who  wrote 
C.  726.  to  him  in  regard  to  his  missing  prop- 

3  Attorney-General  v.  Briant,  15  L.  erty.  State  v.  Soper,  16  Me.  293,  295. 
J.  Exch.  265:  Rex  ».  Akers,  6  Esp.  4  Rex  v.  Watson,  32  How.  St.  Tr.  1, 
125;  Rex  v.  Hardy,  24  How.  St.  Tr.  105. 

199;  Rex  v.  Watson,  32  How.  St.  5  People  v.  Davis,  52  Mich.  569; 
Tr.  1,105, 2  Stark.  104, 116, 136;  State  v.  Reg.  v.  Richardson,  3  F.  &  F.  693; 
Brown  (Del.,  1897),  36  Atl.  Rep.  458.     People  v.  Laird,  102  Mich.  135,  139,  60 


§172  PRIVILEGED    COMMUNICATIONS.  215 

§  172.  Communications  to  attorneys-at-Iaw. — At  common 
law  an  attorney  could  not  be  compelled,  nor  would  he  be  al- 
lowed, to  disclose  any  communication  made  to  him  by  a  client, 
or  the  advice  given  by  him  in  the  course  of  his  professional 
employment.1  In  very  many,  if  not  in  a  majority  of  the  states, 
this  rule  has  been  confirmed  by  statute.  It  is  also  often  ex- 
pressly provided  that  the  privileged  character  of  the  communi- 
cation may  be  waived  by  the  client.2  The  modern  tendency  of 
the  courts  is  to  give  the  rule  its  fullest  possible  application, 
and  to  apply  it  in  both  civil  and  criminal  proceedings,  not  only 
to  oral  or  written  communications  passing  between  attorney 
and  client,  but  to  all  information  which  is  acquired  by  the  for- 
mer because  of  the  existence  of  the  professional  relation.  It 
matters  not  whether  the  information  has  been  derived  from  the 
client's  words,  actions  or  personal  appearance.  Thus,  where 
the  accused  was  on  trial  for  stealing  a  quantity  of  current  sil- 
ver coin,  it  was  held  error  to  compel  his  attorney  to  testify  to 
the  fact  that  he  had  received  silver  coin  as  a  part  of  his  retain- 
er.3 And  in  some  states  the  statute  expressly  provides  that  all 
information  coming  to  the  attorney  and  relating  to  the  matter 
upon  which  he  has  been  consulted  by  the  client  is  privileged.4 
The  rules  and  statutes  regulating  privileged  communications, 
are  generally  regarded,  both  by  legislators  and  by  the  courts, 
as  applicable  to  the  examination  of  witnesses  in  criminal  trials, 
even  where  this  is  not  expressly  provided   for  in  the  statute.5 

N.   W.    Rep.    457;  United   States    v.  Eev.  St.,  1879,  p.  690,  4017;  Wisconsin 

Moses,  4  Wash.  C.C.  726.  The  matter  is  R.   St.   4074;   Texas  Code    Cr.  Pro., 

now  sometimes  regulated  by  statute,  §  733. 

Cal.  Civ.  Code.  1881 ;  Colo.,  Acts  1883,  s  State  v.  Dawson,  90  Mo.  149, 154; 

p.  289;  Minn.  Stat.,  §5094.  State  v.  Douglass,  20  W.  Va.  770,  781. 

JBest  on   Ev.,   §§  53,  581;  Reg.  v.  i Texas  Code  Civ.  Pro.,  §  733. 

Hankins,  2  C.  &  K.  823,  825;  Rex  v.  5  Wharton  Cr.  Ev.,  496,  1 1  seq.;   Mi- 

Dixon,  3  Burr.  1687;   1  Phill.  on  Ev.,  Ian  v.  State,  24  Ark.  346,  355;  Bene- 

171 ;  Casey  v.  State,  37  Ark.  67,  83,  84.  diet  v.  State,  44  Ohio  St.  679,  688 ;  State 

See    civil    cases    Underbill    on    Ev.,  v.  Ilazleton,  15  La.  An.  72;  Hernandez 

§  169  ot  seq.  v.  State,  18  Tex.  App.  134,  152;  Pol- 

8See  Tennessee  Code,  1884,  §4748,  son  v.  State,  137  Ind.  519,   35  N.  E. 

p.  879 ;    Georgia   Code,    1882,   p.  987,  Rep.  907 ;  Graham  v.  People,  63  Barb. 

§  3797;  Pennsylvania  L.  158,  §§  2-5;  (N.  Y.)  468,  483.     Of.  People  v.  West, 

California    Code    C.    P.    1885,    1881 ;  106  Cal.  89.  39  Pac.  Rep.  207. 
Indiana  R.  S.  1881,  §  1796;  Missouri 


216 


CRIMINAL    EVIDENCE. 


$173 


Nor  is  it  material  that  the  client,  himself,  turns  state's  evi- 
dence. Even  such  a  course  on  his  part  does  not  open  his  attor- 
ney's lips  as  regards  professional  communications.1 

§  173.  Communications  made  by  or  to  the  agent  of  the  at- 
torney.— The  communication  need  not  have  been  made  directly 
to  a  member  of  the  legal  profession.  But  it  must  have  been 
made  to  a  person  who,  whatever  his  character,  was  actually 
occupying  the  position  of  legal  adviser.  If  a  communication 
was  made  to  an  attorney  whom  the  accused  has  requested  to 
act  for  him,  it  will  be  privileged,  though  he  subsequently  re- 
fuse to  act.2  The  rule  does  not  require  that  a  retainer  should 
have  been  paid,3  or  any  particular  form  of  application  made 
to  the  attorney,  if  he  was  consulted  with  the  intention  of  ob- 
taining his  professional  services.  A  communication  to  or 
advice  from  the  representative  of  an  attorney  is  no  less  privi- 
leged than  a  communication  by  or  to  the  attorney.  Thus,  a 
clerk,  interpreter,  or  agent  of  the  attorney,  will  not  be  allowed 
to  testify  to  any  communication  made  to  him  in  a  professional 
■capacity  by  a  client  of  his  employer.4  One  present  during  a 
conversation  between  attorney  and  client,  but  who  was  not  the 
medium  of  conversation,  may  testify  to  what  he  saw  and  heard.5 
And,  generally,  every  person  of  whom  legal  advice  is  asked 
may  be  compelled  to  testify  regarding  information  divulged,  if, 
at  that  time  and  in  reference  to  that  matter,  he  did  not  occupy 
the  position  of  an  attorney.6   And  this,  according  to  the  weight 


button  v.  People,  16  Tex.  App. 
490.  Contra,  Alderman  v.  People,  4 
Mich.  414. 

2  Peek  v.  Boone,  90  Ga.  767,  17  S 
E.  Rep.  66,  67;  Young  v.  State,  65  Ga 
525. 

3  Bacon  v.  Frisbie,  80  N.  Y.  394,  399 
Thayer  v.  Thayer,  101  Mass.  111. 

4ITnderhill    on     Evidence,     §169 
Hawes  v.  State,  88  Ala.  37,  68 ;  1  Green, 
on  Evid.,  §239;  Studdy  v.  Sanders,  2 
Dowl.  &  R.  347. 

5  People  v.  Buchanan,  145  N.  Y.  1, 
26;  Perry  v.  State  (Idaho,  1894),  38 


Pac.  Rep.  655;  Tyler  v.  Hall,  106  Mo. 
313;  Walker  v.  State,  19  Tex.  App. 
176,  181,  182;  Hoy  v.  Morris,  13  Gray 
519;  Holman  v.  Kimball,  22  Vt.  555. 
The  presence  of  the  mother  of  a  prose- 
cutrix in  a  trial  for  the  crime  of  seduc- 
tion at  an  interview  between  her 
daughter  and  the  daughter's  attorney 
does  not  destroy  the  privilege  as  the 
daughter's  youth,  innocence  and 
modesty  would  imperatively  require 
the  mother  to  be  present.  Bowers  v. 
State,  29  Ohio  St.  542,  546. 
6  "It  is  equally  well  settled  that  an 


§174 


PRIVILKCKI)    COMMUNICATIONS. 


217 


of  the  decisions,  is  the  rule,  though  the  person  requesting  ad- 
vice supposed  him  to  be  an  attorney.1  So  communications 
between  an  employer  and  a  confidential  clerk  or  steward  are 
never  privileged.2 

§  174.    Character   and   date   of   the    communications. — The 

presence  of  certain  elements  is  indispensible  to  all  classes  of 
privileged  communications.  In  the  first  place  the  communi- 
cation must  have  been  made,  the  advice  given  or  the  informa- 
tion divulged  while  the  confidential  relation  existed.  Any- 
thing said  afterwards  is  not  within  the  rule.3     So  the  commu- 


interpreter,  intermediary  agent  or 
clerk  of  an  attorney,  through  whom 
communications  between  attorney  and 
client  are  made,  stands  upon  the  same 
footing  as  his  principal  and  will  not 
be  allowed  to  divulge  any  fact  coming 
to  his  knowledge  as  the  conduit  of  in- 
formation. But  the  rule  extends  no 
farther  than  this."  Hawes  v.  State, 
88  Ala.  37,  68;  Walker  v.  State,  19 
Tex.  App.  176,  181 ;  In  re  Monroe,  20 
N.  Y.  Supp.  82,  84 ;  Schubkagel  v.  Dier- 
stein,  131  Pa.  St.  46,  54  (law  student) ; 
Brungger  v.  Smith,  49  Fed.  Bep.  124. 

1  Barnes  v.  Harris,  7  Cush.  (Mass.) 
576,  578. 

2  State  v.  Isham,  6  How.  (Miss.)  35; 
State  v.  Charity,  2  Dev.  (N.  Car.)  543, 
545,  549;  Sample  v.  Frost,  10  Iowa  266. 
Information  disclosed  in  business  or 
friendly  confidence,  even  though  un- 
der a  pledge  of  secrecy  is  not  pro- 
tected. McManus  v.  Freeman,  2  Pa. 
Dist.  Rep.  144;  Cady  v.  Walker,  62 
Mich.  157,  158;  Wilson  v.  Rastall,  4 
T.  R.  753.  Where  a  man,  though  not 
admitted  to  the  bar,  has  practiced  for 
years  before  justices  of  the  peace, 
communications  made  to  him  by  the 
accused,  not  merely  as  a  friend,  but 
for  the  purpose  of  securing  his  profes- 
sional assistance,  are  under  the  rule. 
Benedict  v.  State,  44  Ohio  St.  679,  688, 
11  N.  E.  Rep.  125.    But  compare,  con- 


tra, Barnes  v.  Harris,  7  Cush.  576,  578 ; 
Fountain  v.  Young,  6  Esp.  113,  where 
statements  made  to  persons  who  were 
erroneously  supposed  to  be  attorneys 
were  not  privileged.  If,  however, 
there  is  any  doubt  whether  the  com- 
munications were  intended  to  be 
privileged  or  not,  the  accused  should 
have  the  benefit  of  the  doubt.  People 
v.  Atkinson,  40  Cal.  284,  286. 

3  People  v.  Hess  (N.  Y.),  8  App.  Div. 
143, 40  N.Y.  Supp.  486 ;  Wadd  v.  Hazel- 
ton,  62  Hun  602,  609 ;  Long  v.  State,  86 
Ala.  36 ;  Reg.v.  Hay  ward,  2  C.&  K.  234, 
236 ;  Reg.  v.  Farley,  2  C.  &  K.  313,  315 ; 
Basye  v.  State,  45  Neb.  261,  63  N.  W. 
Rep.  811 ;  State  v.  Hedgepeth,  125  Mo. 
14,  20,  21,  28  S.  W.  Rep.  160,  162; 
Hernandez  v.  State,  18  Tex.  App.  134. 
Under  a  statute  exempting  "confi- 
dential communications  entrusted  to 
an  attorney  in  his  professional  capac- 
ity necessary  and  proper  to  enable 
him  to  discharge  the  functions  of  his 
office,"  it  has  been  held  that  the  rela- 
tion of  attorney  and  client  need  not 
exist,  but  that  communications  made 
to  the  prosecuting  attorney  by  a  wit- 
ness for  the  state  are  within  the  stat- 
ute. State  v.  Houseworth,  91  Iowa 
740,  60  N.  W.  Rep.  221.  But  when  a 
prisoner  confined  in  jail  called  an  at- 
torney, who  had  come  there  to  see  a 
client,  and  without  retaining  him,  re- 


218  CRIMINAL    EVIDENCE.  §174 

nications  must  have  been  made  by  or  to  the  attorney,  physician 
or  priest  while  he  was  acting  professionally.  Information, 
such  as  belongs  to  ordinary  intercourse,  is  not  privileged.  The 
communication  must  relate  to  the  attorney's  professional  duty, 
though  it  is  never  necessary  that  it  should  be  expressly  stated 
to  him  by  the  client  that  it  is  confidential,1  for  this  fact  is 
always  inferred  and  presumed  until  the  contrary  is  shown 
whenever  the  relation  of  attorney  and  client  is  proved  to  exist. 

The  attorney  has  been  permitted  in  civil  cases  to  identify  his 
client,2  to  disclose  the  name  of  a  person  who  retained  him,3  to 
prove  his  client's  handwriting,4  or  address,5  the  date  when  he 
received  a  certain  instrument,6  the  fact  that  he  drew  a  deed  for 
his  client,7  or  paid  money  to  him,8  or  to  a  third  person  on  his 
client's  account.  So  an  attorney  may  be  compelled  to  answer 
a  question  designed  solely  to  ascertain  whether  he  had  ever 
been  consulted  in  his  professional  capacity  by  the  accused,9  or 
whether  he  had  acted  for  him  without  authority.10 

And  generally  when  an  attorney,  though  acting  as  such,  ob- 
tains knowledge  of  any  fact,  not  by  means  of  his  professional 
character  but  by  his  powers  of  observation  as  a  man,  i.  e.,  by 
the  same  means  any  one  in  a  like  situation  would  employ,  the 
information  is  not  privileged.11 

quested  him  to  call  on  the  chief  of  po-  8  Chapman  v.  Peebles,  84  Ala.  283, 

lice  and  ask  him  to  let  him  off,  it  was  284. 

held  that  as  the  relation  of  attorney  9  White  v.   State,   86   Ala.   69,    75; 

and  client  did  not  exist,  the  message  Leindecker  v.  Waldron,   52   111.   283, 

was  admissible.     State  v.  Hedgepeth,  285. 

125  Mo.  14,  21,  28  S.  W.  Rep.  160.  10  Cox  v.  Hill,  3  Ohio  411,  424. 

1  Wheeler  v.  Hill,  16  Me.  329.  "  State  v.  Fitzgerald,  68  Vt.  125,  34 

2  Studdy  v.  Sanders,  2  Dowl  &  Ry.  Atl.  Rep.  429;  Milan  v.  State,  24  Ark. 
347.  346,  355;  Wadd  v.  Hazeltine,  62  Hun 

3  Brown  v.  Payson,  6  N.  H.  443, 448.     602,  609;     Swaim  v.  Humphreys,  42 
4Hurd  v.  Moring,   1  C.  &  P.  372;     111.  App.  370;    State  v.  Merchant  (N. 

Brown  v.  Jewett,  120  Mass.  215,  218.  H.),  18  Atl.  Rep.  654 ;  Theisen  v.  Day- 

5  Com.  v.  Bacon,  135  Mass.  521,  524:  ton,  82  Iowa  74.  So  an  attorney  may 
States.  Houston,  3  Harr.  (Del.),  15;  testify  from  his  knowledge  of  his  cli- 
Martin  v.  Anderson,  21  Ga.  301,  309.  ent's  handwriting  that  an  instrument 

6  Wheatley  v.  Williams,  1  M.  &  W.  was  written  by  him  if  his  knowledge 
533.  was   gained  by  handling  documents 

'Barry  v.  Coville,  53  Hun  620,  7  written  by  his  client.  Johnson  v.  Da- 
N.  Y.  S.  36.  verne,  19  Johns.  (N.  Y.)  134;  Coates 


§  175 


PRIVILEGED    COMMl'NICATIONS. 


219 


It  is  never  essential  that  any  proceedings,  criminal  or  civil, 
should  be  pending  or  even  in  contemplation.  That  the  rela- 
tion of  attorney  and  client  exists  is  enough  ;  for,  whatever  the 
transaction  (unless  some  future  infraction  of  the  criminal  law 
is  contemplated),  and  whether  or  not  it  is  likely  to  be  subse- 
quently litigated,  the  communication  or  advice  is  privileged.1 
Ln  conclusion,  it  may  be  noted  as  not  within  the  rule,  that  an 
attorney  may  testify  that  a  person  alleged  to  be  his  client  had 
made  no  communication  to  him  or  received  no  advice;2  and  he 
may  repeat  a  statement  made  to  him  (though  made  while  he 
was  acting  professionally)  by  a  third  person,  to  whom  he  was 
referred  by  his  client,3  or  communications  by  the  client  which 
he  meant  should  be  imparted  to  others  by  the  attorney,4  or  a 
conversation  between  two  persons  which  took  place  in  his  pres- 
ence, though  both  were  his  clients.5 

§  175.    Communications  made  in  contemplation  of  crime. — 

Communications  made  by  a  client  who  contemplates  the  com- 
mission of  a  felony,  or  advice  given  by  an  attorney  to  enable 
his  client  to  escape  the  consequences  of  a  future  infraction  of 
the  criminal  law,  are  not  privileged.6  An  accused  person  may 
claim  privilege  for  any  information  communicated  by  him  to 


v.  Birch,  2  Q.  B.252;  Chant  v.  Browne, 
12  Eng.  L.  &  E.  299.  See  civil  cases, 
Underhillon  Ev.,  §170. 

1  Arnold  v.  Chesebrough,  41  Fed. 
Rep.  74;  Snow  v.  Gould,  74  Me.  540, 
542,  543;  In  re  Whitlock,  51  Hun  351, 
353-355 ;  Bingham  v.  Walk,  128  Ind. 
164,  172;  Mutual  L.  Ins.  Co.  v.  Selby, 
72  Fed.  Rep.  980. 

2  Daniel  v.  Daniel,  39  Pa.  St.  191. 

3  In  re  Mellen,  63  Hun  632. 

4  White  v.  State,  86  Ala.  69;  Roper 
v.  State,  58  N.  J.  L.  420,  33  Atl.  Rep. 
969;  Ferguson  v.  McBean,  91  Cal.  63; 
Hughes  v.  Boone,  102  N.  Car.  137, 159, 
160;  Cady  v.  Walker,  62  Mich.  157, 
158. 

5  In  re  Weaver,  9  Pa.  Co.  Ct.  Rep. 
516. 


6  The  lawfulness  of  the  purpose  of 
the  communication  will,  in  the  ab- 
sence of  contrary  proof,  be  presumed. 
If  the  client's  purpose  be  to  commit  a 
felony  or  to  do  any  act  which  is  malum 
in  se,  the  privilege  is  at  once  destroyed. 
Bank  of  Utica  v.  Mersereau,  3  Barb. 
Ch.  (N.  Y.)  528;  Peoples  Blakeley, 
4  Park.  Cr.  Rep.  176,  181.  It  is  other- 
wise if  the  intent  is  doubtful,  and  if 
the  act  contemplated  might  be  lawful, 
e.  (/.,  producing  a  miscarriage  or  abor- 
tion on  a  pregnant  woman,  which, 
under  some  circumstances,  might  be 
lawful  as  necessary  to  save  the  moth- 
er's life.  Guptill  v.  Verback,  58  Iowa 
98,  100. 


220  CRIMINAL  EVIDENCE.  §  170 

an  attorney  or  physician  after  the  date  of  the  crime  with  which 
he  is  charged.  He  can  not  claim  to  have  the  mouth  of  an  at- 
torney closed  with  whom  he  consults  to  ascertain  how  he  may 
commit  crime  and  escape  detection  and  punishment. 

It  is  no  part  of  the  duty  of  an  attorney  to  counsel  as  to  the 
best  methods  of  violating  the  law.1  The  law  does  not  permit 
such  a  prostitution  of  an  honorable  relation,  but  considers 
every  communication  for  a  criminal  purpose  as  a  conspiracy 
in  its  essence,  or  an  attempt  at  a  conspiracy,  which  it  is  not 
only  lawful  to  divulge,  but  which  the  attorney  is  bound  to 
disclose  at  once  in  the  interests  of  justice.2 

The  fact  that  the  attorney  is  not  cognizant  of  the  criminal  or 
wrongful  purpose,  or,  knowing  it,  attempts  to  dissuade  his 
client,3  is  immaterial.  The  attorney's  ignorance  of  his  client's 
intentions  deprives  the  information  of  a  professional  character 
as  full  confidence  has  been  withheld.4 

§  176.  Permanency  of  the  privilege — Waiver. — The  termina- 
tion of  the  transaction  pending  when  the  communication  was 
made,  or  the  termination  of  the  relation  of  attorney  and  client 
by  the  death  of  the  client,  or  for  any  other  cause,  does  not  un- 
seal the   lips  of  the   attorney.5     The  privilege  is  designed  to 

Baylor  v.   Evans  (Tex.,  1894),  29  must  be  both  professional  confidence 

S.  W.  Rep.  172,  174.  and   professional   employment.     If  a 

2  Reg.  v.  Cox,  L.  R.  14  Q.  B.  Div.  153,  client  has  a  criminal  object  in  view  in 

168;  People  v.  Van  Alstine,  57  Mich,  communicating  with  his  solicitor,  one 

69,  79;  Orrnan  v.  State,  22  Tex.  App.  of  these  elements  must  necessarily  be 

604,  617;  Greenough  v.  Gaskell,  1  M.  absent.    The  client  must  either  con- 

&  K.  98,  104;   People  v.  Blakeley,  4  spire    with  the   attorney  or  deceive 

Park.  Cr.  Rep.  (N.  Y.)  176,181;  Ev-  him.   If  the  criminal  object  is  avowed, 

erett  v.  State,  30  Tex.  App.  682,  685,  the  client  does  not  consult  his  adviser 

686,  18  S-W.  Rep. 674;  Coveney  v.Tan-  professionally,  for  it  is  not  his  busi- 

nahill,  1  Hill  (N.Y.)  33,  36;  People  v.  ness  to  further  a  criminal  object.     If 

Mahon,  1  Utah  205;  Russell  v.  Jack-  the  client  does  not  avow  his  object  he 

son,  9  Hare  387.  reposes  no  confidence,  for  the  state  of 

3Orman  i    State,  22  Tex.  App.  604,  facts,  which  is  the  foundation  of  the 

617 ;  Reg.  v.  Hay  ward,  2  C.  &  K.  234.  supposed  confidence,  does  not  exist." 

4  Reg.v.  Cox,  L.  R.  14  Q.  B.  Div.  153,  Reg.  v.  Cox,  L.  R.   14  Q.  B.  Div.  153, 

163, 165,  5  Am.  Cr.  Rep.  140 ;  Matthews  168. 

v.  Hoagland,  48  N.  J.  Eq.  455.     "In  5Underhill  onEv.,  §172. 
order  that  the  rule  must  apply  there 


§176  PRIVILEGED    COMMUNICATIONS.  221 

protect  the  interests  of  the  client.  He  may  waive  it  if  he 
deems  it  to  his  advantage  to  do  so.  His  representative  may, 
after  his  decease,  waive  the  privilege,  but  only  when  the  appli- 
cation of  the  rule  would  be  disadvantageous  to  his  estate.1  The 
privilege  may  be  waived  by  the  client,  either  by  implication 
arising  from  his  silence  or  failure  to  make  prompt  objection  and, 
a  fortiori,  by  an  express  waiver.2  The  doctrine  of  an  implied 
waiver  arising  from  circumstances  is  doubtless  a  safe  rule  in  civil 
litigation,  though  very  dangerous  doctrine  in  a  criminal  trial. 
An  express  waiver  is  always  allowed  in  a  criminal  prosecution, 
particularly  where  the  accused  is  desirous  of  having  his  coun- 
sel testify  in  his  behalf.3  But  it  is  doubtful  if  any  waiver 
would  be  implied.4  The  privilege  of  the  accused  is  certainly 
not  waived  because  he  goes  on  the  stand  as  a  witness.  In 
civil  cases  it  has  been  held  that  a  party  is  privileged  from  dis- 
closing what  his  attorney  would  be  prevented  from  divulging,5 
and  the  same  rule  would  doubtless  apply  to  the  cross-examina- 
tion of  the  accused.6  But  an  accomplice  who  consents  to  be  a 
witness  for  the  prosecution  can  not  claim  the  privilege  for  his 
statements  to  his  attorney.  He  must,  under  his  arrangement 
with  the  state,  tell  all  he  knows,  and  if  he  knowingly  keeps 
back  any  relevant  fact  he  loses  his  right  to  the  immunity 
promised.  And  the  fact  that  he  may  be  compelled  to  state 
what  he  divulged  to  his  attorney  regarding  his  guilt  may  be 

1  Layman's  Will,  40  Minn.  371,  373;  his  privilege  by  implication,  and  the 
Morris  v.  Morris,  119  Ind.  341,  343;  attorney  is  compellable  to  testify  to 
Blackburn  v.  Crawfords,  3  Wall.  175.  all  facts  which  may  be  proved  by  a 
Contra,  Loder  v.  Whelpley,  111  N.  Y.  subscribing  witness,  though  conriden- 
239, 245;  Underbill  on  Ev.,  §  172, note  5.  tial  communications  maybe  included. 
The  privilege  is  wholly  personal  to  the  3  Whart.Cr.  Ev.,  §  §  498, 500 ;  Walker 
client  while  he  is  living.  It  cannot  v.  State,  19  Tex.  App.  176,  182;  Ham- 
be  waived  by  anjr  person  merely  be-  ilton  v.  People,  29  Mich.  173.  179. 
cause  he  stands  in  privity  with  him.  4Duttenhofer  v.  State,  34  Ohio  St. 
State  v.  James,  34  S.  Car.  579,  13  S.  E.  91,  95. 

Rep.  325.  5Hemenway  v.  Smith,  28  Vt.  701; 

2  Blackburn  v.   Crawfords,  3  Wall.     Bigler  v.  Reyher,   43    Ind.  112,  114; 
175, 194;  States.  Depoister,21  Nev.  107,     Baker  r.  Kulm,  38  Iowa  392,  395. 

25  Pac.  Rep.  1000,  1002.     So  a  client        6  Alderman  v.  People,  4  Mich.  414, 
who  requests  his  attorney  to  act  as  a     422. 
subscribing  witness  to  his  will  waives 


222  CRIMINAL  EVIDENCE.  §  17/ 

the  only  means  left  to  an  innocent  man  accused  of  crime,  of 
meeting  the  perjury  of  the  real  criminal,  posing  as  a  penitent 
accomplice  on  the  witness  stand.1  The  privilege  belongs  to  the 
client  and  ought  to  be  promptly  claimed  by  him  or  by  his  attorney 
or  representative.  But  it  seems  that,  particularly  in  a  criminal 
trial,  the  court  may  and  perhaps  should  interpose  of  its  own 
motion  for  the  protection  of  an  accused  person  who  may  be  en- 
tirely ignorant  of  his  right  to  remain  silent  when  he  is  called 
upon  to  state  what  he  said  to  his  attorney.2 

§  177.  Writings  when  privileged. — A  communication  to  or 
advice  given  by  an  attorney  in  writing  is  always  privileged, 
nor  can  an  attorney  be  compelled  to  produce  a  client's  papers 
deposited  with  him  for  safe-keeping  or  to  obtain  his  profes- 
sional opinion.  He  may  always  be  permitted  to  prove  that  a 
paper  is  in  existence,  that  he  has  searched  for  it,  and  that  it  is 
or  is  not  in  his  possession,  to  enable  the  other  party  to  prove  it 
by  parol.  He  can  not  be  compelled  to  produce  the  papers,  or 
to  disclose  their  contents,  if  the  papers  are  no  longer  in  his 
custody.3  Not  only  is  the  attorney  prohibited  from  producing 
the  writing,  but  he  is  also  forbidden  to  disclose  all  informa- 
tion, wThether  names,  dates,  or  other  facts  which  he  may  have 
derived  therefrom.  So,  if  a  forgery  is  under  investigation 
by  the  grand  jury,4  or  a  person  accused  of  that  crime  is  on 
trial,  an  attorney,  who  may  have  the  alleged  forged  writing 
in  his  possession  can  not  be  compelled   to  produce   it  as  evi- 

1  Alderman  v.  People,  4  Mich.  414,  incurring  the  liability  of  having  his 
423;  Foster  v.  People,  18  Mich.  265;  defense  disclosed  to  the  other  side." 
Hamilton  v.  People,  29  Mich.  173, 184 ;     Hare  on  Discovery,  152. 

Wharton  on  Cr.  Ev.  502 ;    People  v.  3  Brandt  v.  Klien,    17  Johns.  335 ; 

Gallagher,  75  Mich.  512, 516.     Contra,  Brard    v.    Ackerman,    5     Esp.    119; 

Sutton  v.  State,  16  Tex.  App.  490,  495.  Wright  v.  Mayer,  6  Ves.  280;  Coveney 

2  "The  communications  between  a  v.  Tannahill,  1  Hill  33,  35;  Mallory 
party  or  his  legal  adviser  and  his  v.  Benjamin,  9  How.  Pr.  Rep.  (N.  Y.) 
witnesses  are  also  privileged.  There  419,  423;  Selden  v.  State,  74  Wis.  271, 
is,  in  those  cases,  the  same  necessity  274,  275;  State  v.  Hazleton,  15  La. 
for  protection ;  otherwise  it  would  be  An.  72;  Neal  v.  Patten,  47  Ga.  73; 
impossible  for  a  party  to  write  a  letter  Dale  v.  Denison,  4  Wend.  558,  and 
for  the  purpose  of  obtaining  informa-  cases  cited  in  Underhill  on  Ev.,  §  173. 
tion  on  the  subject  of  his  suit  without  4  Anon.,  8  Mass.  370,  371. 


§  178  PRIVILEGED    COMMUNICATIONS.  223 

dence  against  the  accused  if  the  attorney  received  it  profes- 
sionally.1 The  object  of  the  privilege  is  to  promote  justice 
and  to  protect  the  innocent.  The  law  frowns  upon  all 
attempts  to  use  it  to  defeat  justice  by  shielding  guilty  persons. 
Hence,  writings  are  not  privileged  which  are  not  given  to  the 
attorney  in  good  faith  and  in  his  professional  capacity.  He 
may  be  compelled  to  produce  forged  writings  which  he  re- 
ceived unwittingly  in  the  execution  of  a  proposed  scheme  to 
defraud,2  or  writings  which  were  given  to  him  for  the  purpose 
of  suppressing  evidence.3 

A  communication  to  an  attorney  acting  as  a  conveyancer  is 
privileged,4  though  he  act  for  both  parties.5 

§178.  Communications  to  spiritual  adviser. — By  the  early 
common  law,  following  the  rule  of  the  modern  Roman  and 
the  canon  law,  statements  made  to  a  priest  in  a  confession  were 
privileged,  except,  perhaps,  in  case  of  high  treason.6  But  the 
common  law,  since  the  Reformation,  has  only  protected  the 
information  divulged  by  the  penitent  to  his  spiritual  adviser 
to  the  extent  that  the  latter  was  under  no  legal  compulsion  to 
reveal  the  evidence  to  a  magistrate  and  to  denounce  the  evil- 
doer.7 

He  could  be  compelled,  however,  when  placed  upon  the 
witness  stand,  to  divulge  any  confession  of  crime  made  to  him, 
though  it  was  received  in  the  course  of  religious  discipline, 
and  though  the  law  of  his  church  sealed  his  lips  under  penalty 
of  suspension  from  or  loss  of  office.8     In  this   respect  a  com- 

1  Rex  v.  Smith,  1  Phill.  on  Ev.  (9th  It  is  for  the  court  to  determine  in 
ed.)  171 ;  Reg.  v.  Tuffs,  1  Den.  C.  C.  319,  what  capacity  and  for  what  purpose 
324;  State  v.  Squires,  1  Tyler  (Vt.),  documents  were  left  with  an  attor- 
147,  152;  Reg.  v.  Hayward,  2  C.  &  K.  ney.  Reg.  v.  Jones,  1  Den.  C.  C.  166. 
234.  See  cases    cited  Underhill    on    Ev., 

2  Reg:  v.  Farley,  2  C.  &  K.  313,  319 ;  §  173. 

Reg.  v.  Hayward,  2  C.  &  K.  234.  6  Best  on  Ev.,  583,  584.    See  note  to 

3  People  v.  Sheriff,  29  Barb.  (N.  Y.)     Reg.  v.  Hay,  2  F.  &  F.  4. 

622.  7  Wilson   v.   Rastall,   4  T.    R.    753; 

4  Bingham  v.  Walk,  128  Ind.  164;  Anon.,  Skin.  404;  McNally's  Ev.,  323. 
Getzlaff  v.  Seliger,  43  Wis.  297.  Con-  But  compare  Broad  v.  Pitt,  3  C.  &  P. 
tra.  In  re  Smith,  61  Hun  101.  519. 

5  Clay  v.  Williams,  2  Munf.  105,  122.  8  Rex  v.  Gillam,  2  Russ.  on  Cr.  648; 


224  CRIMINAL  EVIDENCE.  §  179 

niuiiicatioii  made  to  a  priest  is,  in  the  absence  of  statute,  on  a 
par  with  one  made  to  a  layman. 

Many  of  the  states  have  sought  to  remedy  the  unfairness  of 
this  rule  by  statutory  enactments  by  which  priests  and  clergy- 
men are  absolutely  prohibited  from  disclosing  any  fact  becom- 
ing known  to  them  while  acting  in  a  professional  capacity,  or 
in  the  course  of  discipline  enjoined  by  the  rules  of  the  relig- 
ious body  to  which  they  belong.1  But  a  communication  to  a 
priest  made  otherwise  than  in  his  ecclesiastical  capacity  is 
not  privileged.2 

§  179.  Communications  passing  between  medical  practition- 
ers and  their  patients. — At  common  law  communications  to 
medical  men  were  not  privileged.  Although  a  physician  who 
voluntarily  discloses  professional  secrets  would,  from  a  medical 
and  moral  standpoint,  be  guilty  of  a  gross  indiscretion,  the 
law  does  not  treat  them  as  privileged,  and,  in  the  absence  of 
statute,  he  may  be  compelled  to  testify  upon  the  witness  stand.3 
Every  consideration  that  furnishes  a  basis  for  affixing  a  privi- 
lege to  communications  or  information  passing  between  attor- 
ney and  client  applies,  with  equal  force,  to  the  relation  of  phy- 

Smith's  Case,  2  City  Hall  Rec.  (N.Y.)  plainly  untenable,  as  the  statutes  are 

77,  80;  Com.  v.  Drake,  15  Mass.  161;  universally  applicable  to  communica- 

Reg.  v.  Hay,  2  F.  &  F.   4.     Contra,  tions  made  by  the  adherants  of  any 

Rex  v.  Griffin,  6  Cox  C.  C.  219.  religion,  and  their  purpose  is  plainly 

1  California  Civil  Code,  §1881;  Colo-  not  to  protect  the  priest,  or  to  pro- 

rado,    Acts   1883,    p.   289;    Michigan,  mote  any  particular  form  of  religion. 

Howell's   An.    Stat.,    §7515;    Kansas  Such  statutes  are  evidently  intended 

Gen.    Stat.,  §4418;  Iowa  Rev.  Code,  to  protect  all  persons  in  the  exercise 

§5094,  ch.  3;    Missouri  R.  S.,   §8925;  of  their  religious  belief  according  to 

Nebraska   Code,    p.   672;   Wisconsin  the  dictates  of  their  conscience. 
An.     Stat.,    §4074.     Similar  statutes        2 People  v.  Gates,  13  Wend.  (N.  Y.) 

exist  in   Arizona,    Arkansas,   Idaho,  311,  323;  Gillooley  v.  State,  58  Ind. 

Montana,  Nevada,Oregon,Utah,Wash-  182,  184. 

ington  and  Wyoming.  The  question  of        3  Baker  v.  R.  R.  Co.,  L.  R.  3  Q.  B.  91  ; 

the  constitutionality  of  such  statutes  Rex  v.  Gibbons,  1  C.  &  P.  97;    Duch- 

has  been  raised,  but,  up  to  the  present,  ess  of  Kingston's  Case,  20  How.  St. 

never    judicially     determined.      The  Tr.  573-580;   People  v.  Stout,  3  Park, 

only  possible  objection   that  can  be  Cr.  Rep.  670,  673;   People  v.  Pierson, 

raised   on    constitutional  grounds    is  79  N.  Y.  424,  433 ;  People  v.  Lane,  101 

that  they  tend  to  establish  some  form  Cal.  513,  36  Pac.  Rep.  16. 
of    religion.      Such    an    objection   is 


§  179  PRIVILEGED    COMMUNICATIONS.  225 

sician  and  patient.  Aside  from  the  benefit  to  the  patient  in 
encouraging  him  to  make  a  full  disclosure,  by  means  of  which 
he  may  receive  better  treatment,  the  danger  that  the  truth  will 
be  perverted  or  concealed,  perhaps  unconsciously,  by  the  phy- 
sician who  is  compelled  to  disclose  medical  secrets  on  the  wit- 
ness stand,  in  the  struggle  between  professional  duty  and  legal 
duty,  is  removed. 

It  is  now  often  provided  by  statute  that  no  physician  or  sur- 
geon shall  be  allowed  or  compelled  to  disclose  any  information 
which  he  has  acquired  while  attending  a  patient,  or  which  was 
necessary  to  enable  him  to  act  as  such.1 

These  statutes  are  designed  to  protect  the  patient,  not  the 
physician,  and,  being  remedial  in  their  nature,  ought  to  re- 
ceive a  liberal  construction  which  will  fully  effectuate  their 
wise  and  humane  provisions.  The  principles  of  law  applica- 
ble to  privileged  communications  in  the  case  of  attorney  and 
client  may  be  invoked  here.  No  regular  contract  of  hiring  or 
payment  of  a  fee  by  the  patient  need  be  prov.ed.  It  is  unnec- 
essary to  show  that  the  patient  called  him  or  procured  his  at- 
tendance. If  the  physician  was  summoned  by  a  friend  or  a  rel- 
ative, or  even  by  a  stranger  standing  by,  or  by  an  attending 
physician,  it  is  sufficient,  provided  he  attended  as  a  physician.2 
If  a  physician  attend  a  person  under  under  circumstances  cal- 
culated to  produce  the  impression  that  he  does  so  professional- 
ly, and  his  visit  is  so  regarded  and  acted  upon  by  the  person, 
it  is  enough  to  establish  the  relation.  3 

1  "A  person  duly  authorized  to  prac-  ilar    statutes    exist    in    many   other 

tiee  physic  or  surgery  shall  not  be  al-  states. 

lowed    to    disclose    any   information  2  Renihan  v.  Dennin,  103  N.  Y.  573, 

which  he  acquired  in  attending  a  pa-  579;    .(Etna  Ins.  Co.  v.  Deming,  123 

tient,  in  a  professional  capacity,  and  Ind.  384,395;    Raymond  v.   Railway 

which  was  necessary  to  enable  him  to  Co.,  65  Iowa  152,  154. 

act  in  that  capacity."     N.  Y.   Code  8  People  v.  Murphy,   101  N.  Y.  126, 

Civ.   Pro.,    §834;     California    Code,  129;  People  v.  Stout,  3  Park.  Cr.  Rep. 

§1881;    Indiana  R.  S.   1887,  p.  679,  670,  675-680.     In  People  v.  Stout,   a 

§497;    Michigan   G.  S.  1882,    §7516;  prisoner,  while  in  jail  and  suffering 

Missouri   R.  S.   1879,  p.  690,  §  4017;  bodily  injuries,  was  examined  by  the 

Ohio  R.  S.  1884,  p.  1096,  §5241;  Wis-  jail  physician,   and  afterwards,  with 

cousin  R.  S.  1878,  p.  992,  §  4075.     Sim-  his  consent,  by  two  physicians  sent 
15 -Cr.  Ev. 


226 


CRIMINAL    EVIDENCE. 


§179 


These  statutes  expressly  confer  the  privilege  upon  such  in- 
formation only  as  "it  was  necessary  to  communicate  to  enable 
the  physician  or  surgeon  to  act  or  prescribe."  He  will  be 
compelled  to  testify  to  all  facts  with  which  he  became  ac- 
quainted which  were  not  necessary  to  the  exercise  of  his  pro- 
fessional skill.1  The  mere  existence  of  the  professional  rela- 
tion of  physician  and  patient  is  not  enough.  He  must  testify 
to  all  information  acquired  while  attending  the  patient,  if  the 
information  was  not  necessary  to  enable  him  to  act  or  to  pre- 
scribe.2 

He  may  testify  that  he  attended  a  patient,  the  number  of 
visits  he  made,3  the  persons  whom  he  found  present  and  gen- 
erally what  the  patient  said  to  him  not  strictly  in  reference  to 
his  physical  or  mental  condition. 

But  where  the  statute  expressly  excludes  all  information 
communicated  to  or  acquired  by  a  medical  man  in  the  course 
of  his  professional  duties,  or  "while  attending  a  patient  pro- 
fessionally," all  knowledge  of  whatever  description  gained 
from  the  physician's  observation,  or  from  the  examination  of 
the  patient,  or  from  the  latter 's  statements,  is  excluded.4 


by  the  coroner.  It  appeared  that  all 
parties  understood  that  the  examina- 
tions were  made  with  a  view  to  medi- 
cal treatment,  though  not  expressly 
so  stated,  and  though  no  medicine 
was  given  or  prescribed.  The  physi- 
cians were  not  permitted  to  testify  to 
the  physical  condition  of  the  accused. 
Compare  Babcock  v.  People,  15  Hun 
347,  355. 

1  Meyer  v.  Ins.  Co.,  8  App.  Div.  74, 
40  N.  Y.  S.  419;  Campau  v.  North,  39 
Mich.  606,  609 ;  Briggs  v.  Briggs,  20 
Mich.  34,  40;  In  re  Sliney,  137  N.  Y. 
570,  580;  Feeney  v.  L.  I.  R.  R.  Co., 
116  N.  Y.  375  ;  Collins  v.  Mack,  31  Ark. 
684,  693,  694. 

2  Hewitt  v.  Prime,  21  Wend.  79,  81; 
Babcock  v.  People,  15  Hun  347,  454; 
Hoyt  v.  Hoyt,  112  N.  Y.  493,  515; 
Westover  v.  Ins.  Co.,  99  N.  Y.  56,  60. 
On  the  other  hand  it  has  been  said  that 


as  soon  as  the  relation  of  physician 
and  patient  is  shown  to  exist,  it  will 
be  conclusively  presumed  that  all  oral 
communications  were  made  for  the 
purpose  of  enabling  the  physician  to 
prescribe.  The  necessity  and  pur- 
pose of  the  communication  need  not 
be  proved.  Feeney  v.  L.  I.  R.  R.  Co., 
116  N.  Y.  375,  380,  381 ;  Edington  v. 
M.  L.  Ins.  Co.,  67  N.  Y.  185,  194; 
Grattan  v.  Met.  Life  Ins.  Co.,  80  N. 
Y.  281,  297. 

3  Cooley  v.  Foltz,  85  Mich.  47,  49. 

4  "  If  the  knowledge  is  acquired  in 
the  sick  room  and  in  the  discharge  of 
professional  duty,  the  physician  can 
make  no  disclosure.  This  is  true, 
whether  •  the  knowledge  is  gained 
from  the  words  of  the  patient,  by  ob- 
servation, or  by  professional  examina- 
tion. It  is  immaterial  by  what  method 
the  physician  acquires  his  knowledge." 


§  180  PRIVILEGED    COMMUNICATIONS.  227 

The  privilege  may,  at  least  in  civil  cases,  be  waived  by  the  pa- 
tient or  by  his  personal  representative  who  is  expressly  authorized 
to  do  so.1  So,  in  a  prosecution  for  rape,  the  general  rule  is  that 
the  physician  who  attended  the  woman  may  testify  to  any  facts 
within  his  knowledge.  His  calling  by  the  prosecution  is  an 
implied  waiver  of  the  privilege.  Where  the  statute  requires 
that  the  patient  shall  consent  that  the  physician  testify,  con- 
sent may  be  inferred  in  the  case  of  a  minor  on  whom  a  rape 
had  been  committed,  from  the  action  of  the  minor's  parents, 
in  prosecuting  the  criminal.2 

§  180.  Death  of  the  patient — Purpose  of  the  communication 
— Contemplated  crime. — The  statutes  of  privilege  are  usually 
applicable  both  to  civil  and  criminal  trials.  This  is  the  rule 
even  when  the  statute  is  couched  in  the  most  general  terms.3 
Hence,  in  a  homicide  trial,  it  would  seem  that  the  testimony 
of  the  attendant  physician,  proving  the  dying  declaration  of 
the  victim,  ought  to  be  excluded,  for  it  is  clear  that  his  state- 
ment that  he  is  dying  and  his  description  of  the  manner  of  his 
wounding  are  necessary  to  enable  the  physician  to  prescribe. 
The  statute  was  never  intended  as  a  defense  for  criminals.  Its 
plain  purpose  is  not  to  protect  murderers,  but  to  shield  the 
memory  of  the  dead.4  Hence  a  physician  who  has  been  con- 
sulted, in  advance,  by  the  accused,  as  to  the  best  mode  of  pro- 
curing an  abortion  on  a  third  person  may  state  what  was  said,5 
upon  the  theory  that  the  relation  of  physician  did  not  exist  be- 

Heuston  v.  Simpson,  115  Ind.  62,  63;  Andreveno  v.  Mutual  Res.  L.  F.  Assn., 

Renihan  v.  Bennin,  103  N.  Y.  573, 578 ;  34  Fed.  Rep.  870. 

Edington  v.  JEtna,  L.  Ins.  Co.,  77  N.  Y.  2  State  ».  Depoister,  21  Nev.  107,  25 

564;  Gratton  v.  Met.  L.  Ins.  Co.,  80  Pac.  Rep.  1000,  1003;  Hauk  v.  State, 

N.  Y.  281;  People   v.    Stout,  3  Park.  (Ind.  1897)  46  N.  E.  Rep.  127. 

Crim.  Rep.  670,  675;  Morris  v.  N.  Y.,  3  People  v.  Murphy,  101  N.  Y.  126, 

O.  &  W.  Ry.,  148  N.  Y.  88.  129. 

lCarrington   v.   St.   Louis,   89  Mo.  4Pierson  v.  People,  79  N.  Y.  424. 

208,   216;    Yalensin   v.   Valensin,    73  5  Babcock  v.   People,    15   Hun  347, 

Cal.  106,  107;  State   v.  Depoister,   21  354;  Hewitt  v.  Prime,  21    Wend.  79. 

Nev.  107,  25  Pac.  Rep.  1000,  1003.     A  Cf.  People  v.  West,   106  Cal.  89,   39 

death  certificate  made  out  by  an  at-  Pac.  Rep.  207;  State  v.  Smith  (Iowa, 

tending  physician  is  not  privileged.  1897),  68  N.  W.  Rep:  428.  Ante,  §175. 


228  CRIMINAL  EVIDENCE.  §  181 

tween  them  and  that  no  disgrace  is  cast  upon  the  object  of  the 
contemplated  crime. 

But  a  communication  made  by  the  accused  that  a  woman,  for 
whom  he  engages  the  physician's  professional  services,  was 
pregnant  by  him  and  had  attempted  to  produce  a  miscarriage, 
in  which  he  had  assisted  her,  is  privileged  when  made  to  ena- 
ble the  physician  to  give  the  woman  medical  treatment.1  So  a 
physician  who  has  attended  professionally  a  person  who  died 
from  poison,  alleged  to  have  been  administered  by  the  accused, 
may  describe  the  patient's  condition  both  from  his  own  obser- 
vation and  from  what  the  patient  told  him.2 

A  construction,  which  would  operate  to  convert  a  statutory 
provision,  intended  to  protect  a  patient  from  a  damaging  or 
objectional  disclosure,  into  a  protection  for  a  person  accused  of 
the  murder  of  the  patient,  can  not  be  admitted  nor  can  we  be- 
lieve that  such  was  the  legislative  intent.3 

§  181.  Communications  made  during  examination  to  detect 
or  ascertain  sanity. — A  physician  who  is  sent  to  examine  into 
the  mental  or  physical  condition  of  a  person,  e.  g.,  of  the  ac- 
cused, while  in  jail,  merely  to  determine  his  sanity,  may  tes- 
tify to  his  mental  or  physical  condition,4  and  even  to  what  the 
accused  said  to  him  about  the  crime,5  but  only  if  it  is  conclu- 
sively shown  that  the  relation  of  physician  and  patient  did  not 
and  was  not  supposed  to  exist.6 

§  182.  Secrecy  of  telegrams. — Telegraphic  dispatches  are 
not  privileged  communications.     But  in  many    of  the  states 

4 

People  v.  Brower,  7  N.  Y.  Cr.  4  People  v.  Kemmler,  119  N.  Y.  580, 
Rep.  292,  294.  585 ;  People  v.  Schuyler,  7  N.  Y.  Cr. 

2  Pierson  v.  People,  79  N.  Y.  424,     Rep.  262,  267. 

432.  5  People  v.  Sliney,  137  N.  Y.   570, 

3  People  v.  Harris,  136  N.  Y.  423,     580. 

448.     In  this  case  a  physician  testified        6  In  Harrison  v.  Ry.  Co.  (Cal.,  1897) , 

to  the  removal  of  a  dead  foetus  from  a  47  Pac.  Rep.  1019,  it  was  held,  under  a 

woman  of  whose  homicide  the  pris-  statute  conferring   the    privilege    on 

oner  was  accusad,  and  that  the  defen-  "  information  which  was  necessary  to 

dant  at  the  time  stated  he  had  pro-  enable  the  physician  to  prescribe," 

cured  an  abortion  on  her,  she  being  that  information  obtained  by  a  phy- 

his  wife.     See,  also,    Hauk    v.   State  sician,  when  conducting  an  autopsy, 

(Ind.,  1897),  46  N.  E.  Rep.  127.  is  not  privileged.  See,  also,  ante,  §164. 


§183  PRIVILEGED    COMMUNICATIONS.  229 

statutes  exist  which  forbid  any  clerk,  messenger  or  other  em- 
ploye from  divulging  to  any  person  except  the  person  addressed 
the  contents  of  a  telegraphic  message.  These  statutes  do  not 
apply  to  the  production  of  telegrams  in  court  which  may  be 
secured  by  serving  a  subpoena  duces  tecum  upon  the  officer  or 
employe  having  them  in  custody.1  The  rules  of  the  telegraph 
company  forbidding  disclosure  of  dispatches  do  not,  of  course, 
avail  to  prevent  the  production  of  telegrams  when  needed  in 
court.2 

The  subpoena  must  identify  the  particular  papers  required 
by  naming  the  parties  sending  or  receiving  them,  the  subject- 
matter  and  the  dates  if  known.3  But  the  particularity  of  the 
demand  and  the  sufficiency  of  the  language  are  wholly  discre- 
tionary with  the  court.  No  definite  rule  can  be  laid  down. 
But  it  may  be  said  that  the  subpoena  can  not  be  used  to  obtain 
an  indiscriminate  production  of  telegrams  not  material  to  the 
inquiry,  and  which  may,  perhaps,  be  only  effectual  in  disclos- 
ing private,  social  and  business  matters  which  every  man  has 
a  right  to  conceal.  So  a  grand  jury  has  no  power  to  compel 
the  production  of  telegrams  passing  between  parties  during  a 
period  of  fifteen  months  past.4  A  telegraph  official  may  be 
compelled  to  testify  orally  to  the  contents  of  a  dispatch  where 
the  writing   is  lost  or  its  absence  is  otherwise  accounted  for.5 

§  183.  Indecency  of  the  facts  to  be  proved. — Evidence  rele- 
vant to  the  guilt  or  innocence  of  the  prisoner,  and  which  is 

1Croswell     on    Electricity,     §437;  United  States  v.  Hunter,  15  Fed.  Rep. 

State    v.    Sawtelle,   66   N.  II.  488,  32  712,  715. 

Atl.  R.  831 ;  In  re  Storror,  63  Fed.  Rep.  4  Ex  parte  Brown,  72  Mo.  83,  94. 
564;  Ex  parte  Brown,  72  Mo.  83,  88,  7  5  State  v.  Litchfield,  58  Me.  267.  If 
Mo.  App.  484;  State  v.  Litchfield,  58  the  federal  government  shall  take con- 
Me.  267;  United  States  v.  Babcock,  3  trol  of  the  telegraph  it  is  reasonable 
Dill.  566;  Bank  v.  Bank,  7  W.  Va.  to  assume  that  the  rule  by  which  in- 
544,  547;  United  States  v.  Hunter,  15  formation  in  the  hands  of  executive 
Fed.  Rep.  712,  715;  "Woods  v.  Miller  officials  is  privileged  would  apply. 
Co.,  55  Iowa  168, 170;  People  v.  "Webb,  So,  doubtless,  Congress  now  has 
5  N.  Y.  Supp.  855.  power  by  virtue  of  its  control  of  inter- 
state u.  Litchfield,  58  Me.  267.  state  commerce,  of  which  the  tele- 
3  Ex  parte  Jaynes,  70  Cal.  638,  639;  graph  is  a  component  part,  to  pass 

such  a  statute. 


230  CRIMINAL  EVIDENCE.  §  184 

necessary  for  the  purposes  of  criminal  justice,  will  not  be  ex- 
cluded or  regarded  as  privileged,  merely  because  of  its  in- 
decency. In  the  trial  of  certain  rare  and  abnormal  crimes 
caused  by  a  perversion  of  the  sexual  instinct,  the  most  shock- 
ing revelations  of  human  depravity  are  frequently  met  with; 
while  in  the  frequent  criminal  prosecutions  for  abortion,  rape, 
adultery,  seduction  and  bastardy,  the  evidence  is  utterly  unfit 
for  repetition  before  a  miscellaneous  gathering.  Though  rele- 
vant evidence  can  not  be  excluded  because  of  its  indecency,  it 
is  always  in  the  discretion  of  the  court  to  exclude  from  the 
court-room  all  persons  not  concerned  in  the  proceedings, 
either  as  jurors,  witnesses,  counsel  or  court  officers.1  i 

§  184.   Privileged  communications  between  husband  and  wife. 

— At  common  law,  neither  a  husband  nor  a  wife  was  a  compe- 
tent witness  for  or  against  the  other  in  any  judicial  proceed- 
ings, civil  or  criminal,  to  which  the  other  was  a  party.2  This 
incompetency,  so  far  as  civil  actions  were  concerned,  was 
largely  (though  by  no  means  wholly)  based  upon  the  common 
law  identity  of  interest  in  property  rights  existing  between  the 
parties.  The  rule  that  excluded  a  party  as  a  witness  because 
of  interest  logically  excluded  another  who  was  merely  his  or 
her  alter  ego. 

And  in  criminal  trials  it  was  conceived  that  to  permit  hus- 
band or  wife  to  testify  for  the  other  would  be  to  admit  a  wit- 
ness who  would  be  sure  to  perjure  himself  or  herself  because  of 
interest  in  and  bias  and  friendship  for  the  accused.3  If  either 
were  recognized  as  a  competent  witness  against  the  other  who 
was  accused  of  crime,  besides  the  temptation  to  shield  the  ac- 
cused, a  very  serious  injury  would  be  done  to  the  harmony 
and  happiness  of  husband  and  wife  and  the  confidence  which 
should  exist  between  them.  In  other  words,  the  common  law 
incompetency  of  the  husband  and  wife  as  witnesses  in  criminal 
trials  arose  mainly  from  considerations  of  public  policy  having 
respect  to  the  confidential  nature  of  the  marital  relation,  and 

1 1  Greenleaf  on  Ev.,  253.  3  Greenl.  on  Ev.,  229,  247;  Best  on 

2  Cases  cited  in  Underhill  on  Ev.,     Ev.,  586. 
§166. 


§  185  PRIVILEGED    COMMUNICATIONS.  231 

the  interest  which  the  public  have  in   the  preservation  of  do- 
mestic peace  and  confidence  between  married  people.1 

§  185.  Husband  and  wife  as  witnesses  in  criminal  proceed- 
ings.— At  the  common  law  a  wife  is  never  a  competent  witness 
for  her  husband  in  a  criminal  trial,  though  she  may.,  in  one  or 
two  exceptional  cases,  be  a  competent  witness  against  him.2 
The  incompetency  of  the  husband  or  the  wife  to  testify  for  the 
other,  where  either  is  tried  for  a  crime  committed  upon  some 
third  person,  is  sometimes  confirmed  by  statute.3 

A  statute  declaring  in  general  terms  that  a  husband  or  a  wife 
is  competent  as  a  witness4  in  an  action  for  or  against  the  other, 
or  a  statute  which  removes  the  common  law  incompetency  of 
interested  persons  as  witnesses  in  civil  proceedings  (and  even 
in  criminal  proceedings)  will  not  be  effective  to  make  husband 
and  wife  a  competent  witness  against  the  other  in  a  criminal 
trial.5  An  exception  is  made  on  the  trial  of  the  husband  for  a 
personal  injury  inflicted  by  him  on  his  wife,  and  she  is  per- 
mitted to  testify  against  him.  Such  an  exception  is  absolutely 
necessary  to  promote  justice  and  to  protect  the  wife  from  vio- 

lrTurpin  v.  State,  55  Md.  462,  477;  100  Mich.  518,  519.    The  privilege  of 

Stapleton  v.  Crofts,  83  Eng.  C.  L.  Rep.  silence  may  be  claimed  by  the  ac- 

367, 369 ;  Lucas  v.  Brooks,  18  Wall.  436,  cused  as  well  as  by  the  witness.    Peo- 

453;    Steen  v.  State,  20  Ohio  St.  333;  pie  v.  Wood,  126  N.  Y.  249,   264,  27 

United  States  v.  Jones,  32  Fed.  Rep.  N.  E.  Rep.  362. 

569,570;  Williams  v.  State,  44  A  la.  24;  4  See    People  v.    Reagle,   60  Barb. 

Lucas  v.  State,  23  Conn.  18,  20;  Taul-  (N.  Y.)  527,  547;  Wilke  v.  People,  53 

man  v.  State,  37  Ind.  353,  355.  N.  Y.  525,  526. 

2Turpin  v.  State,  55  Md.  462,475;  5  State  v.  Evans  (Mo.,  1896),  39  S.W. 
In  re  Randall,  5  City  Hall  Rec.  141,  Rep.  462;  Steen  v.  State,20  Ohio  St.  333, 
153 ;  State  v.  Wright,  41  La.  An.  600,  334 ;  Turpin  v.  State,  55  Md.  462,  477  ; 
603;  State  v.  Pain,  48  La.  An.  311;  United  States  v.  Crow  Dog,  3  Dak.  106, 
Hussey  v.  State,  87  Ala.  121,  135;  14  N.  W.  Rep.  437.  Cf  Everett  v. 
Johnson  v.  State,  27  Tex.  App.  135;  State,  33  Fla.  661,  673.  The  incom- 
State  v.  Workman,  15  S.  Car.  540, 546;  petency  is  based  on  public  policy, 
Merri wether  r.  State,  81  Ala.  74;  Peo-  not  on  interest  on  the  action.  Bur- 
pie  v.  Reagle,  60  Barb. 527,  547  ;  Lucas  rell  v.  Bull,  3  Sandf.  Ch.  15 ;  Knowles 
v.  State,  23  Conn.  18,  20.  v.  People,  15  Mich.  408,  413;  Dixon  o. 

3  United  States  v.  Bassett,  5  Utah  People,  18  Mich.  84,  92.     Cf  People 

131,13Pac.  Rep.  237;  States.  Parrott,  v.  Fultz,  109  Cal.  258;  State  v.  Rey- 

79  N.  Car.  615,  617 ;  Johnson  v.  State,  nolds  (S.  Car.,  1897),  26  S.  E.  Rep.  679. 
27  Tex.  App.  135;  People  v.  Gordon, 


232 


CRIMINAL    EVIDENCE. 


§185 


lence  at  the  hands  of  her  husband  in  circumstances  where,  from 
the  relation  and  surroundings  of  the  parties,  no  third  person 
could  be  present.1 

It  is  the  policy  of  the  law  to  extend  the  right  of  the  wife  to 
testify  against  the  husband  in  such  cases.2 

The  wife's  dying  declarations  are  always  competent  for  or 
against  her  husband  on  trial  for  her  murder.3  The  credibility 
of  a  husband  or  wife  who  testifies  for  or  against  the  other  in  a 
criminal  trial  is  to  be  considered  and  weighed  by  the  same 
rules  which  apply  to  other  witnesses.  The  fact  of  their  rela- 
tionship as  bearing  upon  credibility  may  be  considered,  but 
their  evidence  must  not  be  regarded  with  suspicion  or  scruti- 
nized with  more  than  ordinary  care.4 


]1  Bl.  Com.  443;  1  East  P.  C.  455; 
Lord  Audley's  Case,  3  How.  St.  Tr. 
401,  402;  1  Whart.  Cr.  L.,  §767;  State 
v.  Sloan,  55  Iowa  217,220;  State  v. 
Bennett,  31  Iowa  24;  United  States  v. 
Bassett,  5  Utah  131,  13  Pac.  Rep.  237 ; 
Brainlette  v.  State,  21  Tex.  App.  611, 
718,  2  S.W.  Rep.  765;  Baxter  v.  State, 
34  Tex.  Cr.  Rep.  516,  31  S.W.  Rep.  394 ; 
Whipp  v.  State,  34  Ohio  St.  87,  89; 
Navarro  v.  State,  24  Tex.  App.  378,  6 
S.W  Rep.  542;  State  v.  Pennington, 
124  Mo.  388,  391 ;  People  v.  Chegaray, 
18  Wend.  (N.  Y.)  637,  642;  Turner  v. 
State,  60  Miss.  351,  354;  United  States 
v.  Smallwood,  5  Cranch  C.  C.  35,  2 
Russell  on  Crimes  606;  People  v. 
Carpenter,  9  Barb.  (N.  Y.)  580-584; 
State  v.  Dyer,  59  Me.  303,  307  (abor- 
tion) ;  Com.  v.  Kreuger  17  Pa.  Co.  Ct. 
R.  181 ;  State  v.  Boyd,  2  Hill  (S.  Car.) 
288 ;  People  v.  Houghton,  24  Hun  501 ; 
People  v.  Hovey,  29  Hun  382,  389; 
Rex  v.  Jagger,  1  East  P.  C.  455  (at- 
tempt to  poison  wife).  This  excep- 
tion is  recognized,  even  if  other  wit- 
nesses testify  to  material  facts.  Bent- 
ley  v.  Crooke,  3  Doug.  (Eng.)  422; 
Taulman  v.  State,  37  Ind.  353,  355. 

2  People  v.  Sebring.  66  Mich.  705, 
707.    In  all  cases  where  a  wife  may 


testify  against  her  husband  she  may, 
with  equal  reason,  testify  for  him. 
State  v.  Patterson,  2  Ired.  (N.  Car.) 
Law  346,  355 ;  State  v.  Neill,  6  Ala.  685, 
686;  People  v.  Fitzpatrick,  5  Park.  Cr. 
Rep.  26,  28;  Com.  v.  Murphy,  4  Allen 
(Mass.)  491,  492;  Rex  v.  Sergeant,  1 
Ry.  &  Mood.  352,  2  Russ.  on  Cr.  986. 
The  question  usually  arises  where  the 
wife  is  a  witness.  The  exception  is 
also  recognized  where  the  husband  is 
a  witness  for  or  against  the  wife. 
Whipp  v.  State,  34  Ohio  St.  87,  89; 
State  v.  Davidson,  77  N.  Car,  522,  523, 
as  where  he  is  the  owner  of  property 
for  the  arson  of  which  the  wife  is  on 
trial.  Jordan  v.  State,  142  Ind.  422, 
41  N.  E.  Rep.  817. 

3 1  East  Cr.  L.  357 ;  State  v.  Belcher, 
13  S.  Car.  459,462;  People  v.  Green,  1 
Denio  (N.  Y.)  614,  615;  Whart.  Cr. 
Ev.,  §393;  Rose,  §118. 

4  State  v.  Collins,  20  Iowa  85,  92; 
States.  Bernard,  45  Iowa  234;  State 
v.  Lingle  128  Mo.  528.31S.W.  Rep.  20, 
22.  Separation  and  non-cohabitation 
do  not  remove  the  restriction  that  a 
husband  or  wife  shall  not  testify 
against  the  other  on  a  criminal  trial, 
Johnson  v.  State,  27  Tex.  App.  135. 


§  18G  PRIVILEGED    COMMUNICATIONS.  233 

§  18G.    Statutory  competency  of    husband    and   wife. — The 

competency  of  a  husband  or  wife  as  a  witness  for  or  against 
the  other  is  now,  to  a  large  extent,  if  not  altogether,  regulated 
by  statute  in  this  country.  The  general  effect  of  this  legisla- 
tion has  been  to  render  the  husband  or  wife  competent  in  civil 
cases  by  removing  any  disqualification  either  may  have  been 
under  because  of  the  merger  of  the  legal  personality  of  the  wife 
into  that  of  the  husband.  This  principle  applied  in  civil  cases 
only,  and  in  such  cases  a  husband  or  wife  is  now  competent  as 
a  witness  to  the  same  extent  as  any  other  person  with  this 
exception  (which  is  recognized  in  all  the  states  which  have 
legislated  upon  the  subject),  that  neither  can  be  permitted  to 
disclose  confidential  communications  which  passed  between 
them  during  coverture.1 

§  187.    Confidential   communications   between  husband  and 

wife. — The  statutory  rule  forbidding  a  husband  or  wife  to  dis- 
close confidential  communications  made  during  marriage  is 
applicable  to  criminal  trials.  Where  the  statute  declares  in  ex- 
press language  that  "  the  husband  or  wife  can  not  be  com- 
pelled to  disclose  confidential  communications,"  either  may  do 
so  voluntarily  if  the  other  consents  thereto,2  though  the  privi- 
lege is  absolute  and  can  not  be  waived  if  the  statute  declares 
the  communication  to  be  incompetent.3  Where  a  communica- 
tion is  not  confidential,  (and  this  will  be  presumed  where  it 
was  made  to  a  third  person  by  the  husband  or  wife  in  the  pres- 
ence of  the  other,4)  or  where  a  third  person  is  present,  or  is 
concealed    and  overhears  an  interview  between  husband  and 

1  See  Underbill  on  Ev.,  §167.  "Corn.   v.    Cleary,    152    Mass.   491; 

2  Emmons  v.  Barton,  109  Cal.  662;  Head  v.  Thompson,  77  Iowa  263.  The 
Southwick  v.  Southwick,  2  Sweeny  prosecutor  in  a  trial  for  an  assault  can 
(N.  Y.)  234.  Thus,  a  confession  by  not  be  compelled  to  state  whether  or 
a  wife  to  her  husband  that  she  has  not  he  told  his  wife  that  the  accused 
committed  incest,  extorted  by  his  had  acted  in  self-defense.  The  law 
threats  to  leave  her,  and  its  repetition,  regards  such  a  communication  as  con- 
under  similar  threats,  to  a  third  per-  fidential  and  will  not  compel  its  dis- 
son,  in  her  husband's  presence,  are  closure.  Murphy  v.  Com.,  23  Gratt. 
confidential  communications   and  in-  (Va.)  960,  965. 

competent.  State  v.Brittain,117  X.Car.  4Com.  v.  Griffin,  110  Mass.  181; 
783.  23  S.E.Rep.433.  Cf.  ante,  §§  173,174.    Mainard  v.  Reider,  2  Ind.  App.  115. 


234  CRIMINAL  EVIDENCE.  §  188 

wife,  it  will  not  be  privileged,1  and  the  third  party  or  the  hus- 
band or  wife  may  testify  to  what  was  said.  But  sometimes  it 
has  been  held  that  a  communication  need  not  be  expressly 
confidential  to  be  privileged,2  and  this  certainly  is  the  rule 
when  the  statute  refers  to  all  communications  made  during 
marriage.8 

A  conversation  between  husband  and  wife  is  no  less  confi- 
dential because  children  were  present  who  took  no  part  in  it.4 
The  cessation  of  the  marital  relation  by  annullment,  divorce 
or  death  will  not  let  in  a  confidential  communication  made 
while  it  existed.  A  divorced  husband  or  wife  can  not  testify 
to  an  adulterous  act  by  either,  or  any  other  fact  occurring  during 
coverture.5  But  either,  after  the  death  of  the  other,  may  tes- 
tify to  facts  which  he  or  she  has  learned  from  other  sources, 
and  not  by  reason  of  the  marriage  relation,  even  though  relat- 
ing to  a  transaction  by  the  deceased. 

It  seems  that  a  written  communication  from  a  husband  to 
his  wife  may  lose  its  privileged  character  by  her  letting  it  go 
out  of  her  hands.  The  writing  is  no  longer  confidential  if 
both  husband  and  wife  have  relinquished  control  over  it.6 

§  188.  Husband  or  wife  of  co-defendant  as  a  witness  for  or 
against  his  associate  in  crime — Testimony  of  husband  or  wife 

1Com.   v.  Griffin,   110    Mass.   181;  threats,  is  not  a  confidential  coinmu- 

Reynolds  v.  State  (Ind.,  1897),  46  N.  nication.    Seitz  v.  Seitz,  170  Pa.  St.  71. 

E.   Rep.   31 ;  State  v.  Center,  35  Vt.  5  State  v.  Jolly,  3  Dev.  &  B.  110, 113. 

378;  People  v.  Lewis,  62  Hun  622,  and  How  far  this  case,  which  expressly 

Underhill  on  Ev.,  §  168.  assumes  all  marital  transactions  to  be 

2  Com.  v.  Hayes,  145  Mass.  289,  293,  confidential,  would  apply  where  the 
14  N.  E.  Rep.  151.  statute  restricts  the  privilege  to  confi- 

3  Campbell  v.  Chace,  12  R.  I.  333;  dential  communications,  is  by  no 
King  v.  King,  42  Mo.  App.  454.  means  certain.    A  divorced  husband 

4  Jacobs  v.  Hesler,  113  Mass.  157,  is  competent  to  prove  the  marriage  on 
160.  So  business  communications  are  the  trial  of  his  wife  for  adultery  corn- 
privileged.  Com.  v.  Hayes,  145  Mass.  mitted  during  the  coverture.  State  v. 
289, 14  N.  E.  Rep.  151.  A  boastful  and  Dudley,  7  Wis.  664.  See,  also,  State  v. 
defiant  declaration  by  a  husband  to  Marvin,  35  N.  H.  22,  26;  Stanleys, 
his  wife  of  his  misconduct,  and  of  his  Montgomery,  102  Ind.  102 ;  French  v. 
intention  to  openly  persist  in  it,  ac-  Ware,  65  Vt.  338,  26  Atl.  Rep.  1096. 
companied    by  insolent    and  brutal  Cf.  ante,  §  176. 

6  State  v.  Buffington,20  Kan.  599,614. 


§  188  PRIVILEGED    COMMUNICATIONS.  235 

on  trial  of  a  third  person  tending  to  criminate. — Whether  a 
husband  or  wife  is  competent  to  testify  as  ;i  witness  upon  the 
trial  of  a  third  person  for  a  crime  (where;  the  spouse  of  the 
witness  is  not  a  party  to  the  record),  if  his  or  her  testimony 
may  incriminate  the  other  party  to  the  marriage  relation,  is  a 
question  which  was  formerly  much  discussed.  It  was  at  one 
time  almost  universally  held  that  such  evidence,  though  it 
only  tended  to  incriminate  collaterally  and  in  connection  with 
other  circumstances,  was  inadmissible.  But  the  rule  is  now 
well  settled  that  this  evidence  is  to  be  received,  not  only  as  to 
those  facts  which,  though  innocent  in  themselves,  constitute 
links  in  a  chain  of  proof  which  will  implicate  the  husband  or 
wife  of  the  witness,  but  also  as  to  those  facts  which  are  directly 
incriminating,1  always  provided  the  spouse  of  the  witness  is 
not  a  party  to  the  record. 

Where  several  persons,  jointly  indicted  for  the  same  crime, 
are  tried  together,  a  different  rule  applies.  Then  the  husband 
or  wife  of  no  one  of  them  is  a  competent  witness  for,2  or  against,3 
any  co-defendant.  Thus,  for  example,  where  two  or  more  are 
indicted  for  a  conspiracy,  the  wife  of  none  of  them  can  testify 
against  the  others  if  the  evidence  connects  her  husband  with 
the  common  plan  or  scheme.4  But  this  rule  of  exclusion 
should  be  thus  qualified.  The  wife  of  a  co-defendant  is  only 
excluded  in  cases  where  the  defendants  are  jointly  tried,  or 
where,  though  separately  tried,  the  nature  of  the  crime 
charged  is  such  that  the  acquittal  of  one  defendant  would  ex- 
onerate her  husband,  as  in  riots  and  conspiracies,  in  which 

■Com.D.   Sparks,  7  Allen  (Mass.)  son,  1  Gray  555,  560;  Moffit  v.  State, 

534,  543;  State  v.  Dudley,  7  Wis.  664,  2  Humph.   (Tenn.)  99,  101 ;  Mask  v. 

668;  State  v.   Marvin,  35   N.  H.  22;  State,    32    Miss.    405,    410;    State    v. 

State  v.  Briggs,  9  R.   I.  361;  Rex  v.  Smith,  2  Ired.  (N.  Car.)  402,  405. 
All  Saints,  6  Maule  &  Selw.  194 ;  State        3  Whart.  (Mm.  Ev.  391;  Woods*. 

v.  Welch,  26  Me.  30 ;  Com.  v.  Gordon,  State,  76  Ala.  35, 37, 38 ;  Rex  v.  Smith,  1 

2  Brewst.  (Pa.)  569;  State  v.  Bridg-  Mood.  289;  Dill  v.  State,  1  Tex.  App. 

man,  49  Vt.  202,  209.     But  compare  278,   283.    Contra,    State    v.    Adams, 

State  v.  Gardner,  1  Root  (Conn.)  485;  40  La.  213,  3  So.  Rep.  733. 
State  v.  Wilson,  31  N.J.  L.  77.  4Johnson  v.   State,  47  Ala.  9;   Rex 

2  Rex   r.   Frederick,  2  Stran.  1095;  v.  Smith,  1  Mood.  289;  United  States 

Rex  v.  Locker,  5  Esp.  107;  Com.  v.  v.  Hanway,  2  Wall.  Jr.  139. 
Easland,  1  Mass.  15;  Com.  v.  Robin- 


236  CRIMINAL  EVIDENCE.  §  189 

the  participation  of  two  or  more  is  necessary  to  constitute  a 
crime.1 

Hence,  where  several  are  indicted  for  a  crime  which  could 
have  been  committed  by  one  person,  as  well  as  by  several,  the 
husband  or  wife  of  either  may  testify  for  or  against  an  accom- 
plice, jointly  indicted,  but  only  when  his  or  her  spouse  is  not 
a  party  to  the  record.2  And  generally  where  a  wife  may  testify 
against  an  accomplice  of  her  husband  because,  under  the  cir- 
cumstances, her  testimony  will  not  injure  the  latter,  she  may 
testify  for  him,  when  he  is  separately  tried.3 

§  189.  Valid  marriage  is  necessary. — The  burden  of  prov- 
ing that  the  marriage  relation  exists  between  the  witness  and 
the  accused  rests  upon  the  party  opposing  the  competency  of 
the  witness.  Unless  a  marriage,  valid  in  all  respects,  is  shown 
to  exist  at  the  time  the  witness  is  offered,  his  or  her  testimony 
must  be  received.  It  is  not  enough  that  the  parties,  suppos- 
ing the  marriage  to  be  valid,  had  lived  together  for  years  as 
man  and  wife,  and  had  introduced  each  other  to  the  world  as 
such.  The  marriage  must  be  actually  and  in  fact  valid,  and 
must  have  existed  in  full  force  and  vigor  down  to  the  date  of 
the   crime  alleged.4     The  validity  of  the  marriage  will  be  in- 

1  Workman  v. State,  4  Sneed.(Tenn.)  v.  State,  2  Humph.  (Teun.)  99;  Com. 

425 ;  Moffit  v.  State,  2  Humph.  (Tenn.)  v.  Manson,  2  Ashm.  31 ;  State  ».  An- 

99,  101.  thony,  1  McCord  (S.  Car.)  285,  286; 

2lGreenl.    on    Ev.    335;   Com.   v.  United  States  v.  Addatte,  6  Blatchf.  76. 

Manson,    2   Ashm.   31.     Against  an  "Where  a  co-defendant  is  competent, 

accomplice,  State  v.  Dyer,  59  Me.  303;  his  wife  is  also.     Blackburn  v.  Com., 

State  v.  Anthony,  1  McCord  (S.  Car.)  12  Bush  181. 

285;   Smith  v.   Com.,  90  Va.   759,   19        4  State  v.  Samuel,  2  Dev.  &  Bat.  (N. 

S.  E.  Rep.  843;  People  v.  Langtree,  64  Car.)   177-184;  Flanigan  v.  State,  25 

Cal.  256;  Moffit  v.  State,  2   Humph.  Ark.  92;    Rickerstricker  v.  State,  31 

(Tenn.)  99,  101;  Grimm  v.  People,  14  Ark.  207;  State  v.  Patterson,  2  Ired. 

Mich.  300;  Blumann  v.  State,  33  Tex.  (N.  Car.)  346,  355;  Wells  v.  Fletcher, 

Crim.  Rep.  43,  21  S.  W.  Rep.  1027;  5  C.  &  P.  12;  Wrye  v.  State,  95  Ga. 

State  v.  Goforth,  136  Mo.  Ill,  37  S.  W.  466 ;  People  v.  McCraney,  6  Park.  Cr. 

Rep.  801 ;  States.  Rainsbarger, 71  Iowa  Rep.  49 ;  Com.  v.  Mudgett,  174  Pa.  St. 

746;  State  v.  Wright,  41  La.  An.  600,  211,  34  Atl.  Rep.  588.     But  in  Dixon 

603.     Contra,  State  v.  Smith,  2  Ired.  v.  People,  18  Mich.  84,  91,  it  was  said 

(N.  Car.)  402,  405.  that  evidence  that  an  actual  marriage 

3  Powell  v.  State,  58  Ala.  362 ;  Moffitt  existed,  though  only  prima  facie  valid, 


§190  PRIVILEGED    COMMUNICATIONS.  237 

quired  into  on  the  voir  dire  examination  of  the  witness,  and,  if 
the  relation  of  husband  and  wife  is  not  found  to  exist,  the 
witness  is  competent  and  must  be  permitted  to  testify.1  And 
the  fact  that  the  parties  have  lived  together  in  illicit  relations, 
though  holding  themselves  out  to  the  world  as  husband  and 
wife,  is  competent  and  admissible  as  an  objection  to  the  credi- 
bility of  the  witness.* 

§  190.  Privilege  as  relating  to  the  evidence  of  judicial  offi- 
cers.— Because  of  the  peculiar  scope  and  nature  of  the  duties 
of  a  judge  presiding  at  a  criminal  trial  it  is  usually  considered 
objectionable,  if  not  indeed  erroneous,  for  him  to  take  the 
witness  stand  on  the  same  trial.  Aside  from  the  general  objec- 
tion that  judicial  conduct  should  not  be  subject  to  cross-exami- 
nation or  comment,  the  peculiar  duties  of  the  judge  in  admin- 
istering oaths  to  the  witnesses  in  case  the  court  has  no  clerk,  and 
in  deciding  upon  their  competency,  with  his  power  to  commit 
for  contempt,  render  it  unfair  that  he  should  assume  the  dual 
character  of  witness  and  judge  in  a  criminal  trial.3  This  rule, 
which  is  based  rather  upon  the  official  character  of  the  witness 
than  upon  the  nature  of  the  testimony  which  he  may  give,  is 
not  absolute,  and  if  the  judge  shall  testify  without  objection  no 
error  has  been  committed.4 

and  on  which  the  prisoner  had,  with  pede  the  course  of  justice.     A  judge 

reason,   relied    and    acted    as    such,  upon  the  witness  stand  is  subjected  to 

will  preclude  the  prosecution  from  at-  all  the  duties  of  a  witness,  while  at 

tacking  the  validity  of  the  marriage  the  same  time  possessing  his  rights 

collaterally.  and  privileges.    Who,  then,  shall  de- 

1  Rex  v.  Peat,  2  Lew.  C.  C.  288.  cide  what  course  shall  be  taken  if,  for 

2  Mann  v.  State,  44  Tex.  642,  643,  reasons  sufficient  in  his  opinion,  he 
citing  Ros.  Cr.  Ev.,  p.  148;  1  Phill.  on  shall  decline  to  answer  a  question  put 
Ev.,  pp.  69,  70;  1  Whart.  Am.  Cr.  to  him  as  a  witness?  Shall  he  ascend 
Law  772;  Hill  v.  State,  41  Ga.  484,  the  bench,  and  with  unseemliness  and 
503;  State  v.  Brown,  28  La.  An.  279,  illegality  pass  judicially  upon  his  own 
280.  conduct?  Or  ought  he  to  be  committed 

3  Rapalye  on  Witnesses,  345 ;  Peo-  for  contempt,  and  the  session  of  the 
pie  v.  Miller,  2  Park.  Cr.  Rep.  (N.  Y.)  court  suspended?  Either  result  must 
197;  Underhill  on  Ev.,  313.  logically  ensue,  and  both  are  equally 

4 People  v.  Dohring,  59  N.  Y.  374.  impracticable."     People  v.   Dohring, 

"Even  to  permit  one  of  several  judges  59  N.  Y.  374;  Rogers  v.  State,  60  Ark. 

to   testify  may   result  in  embarrass-  76,  87. 
ment  and   judicial  scandal,   and  im- 


238  criminal  p:vidence.  §  191 

And  these  considerations,  while  they  are  reasonable,  do  not 
apply  upon  the  trial  of  an  indictment  where  the  witness, 
though  a  judge,  is  not  presiding.  Hence  it  is  the  rule  that  a 
judge  may  testify  under  such  circumstances  to  any  matters 
which  took  place  before  him  in  open  court,1  as,  for  example,  to 
prove  the  evidence  of  an  absent  or  deceased  witness  given  at 
a  previous  trial.2 

§  191.  Privilege  as  relating  to  grand  jurors. — Proceedings 
before  grand  jurors  may  be  regarded  as  privileged  communi- 
cations. The  law  requires  that  the  preliminary  inquiry  into  the 
guilt  or  innocence  of  the  accused  should  be  secret,  in  order  that 
perfect  freedom  of  discussion  may  be  had,  and  that  suspected 
persons  may  not  be  warned  of  their  danger  and  enabled  to 
make  their  escape.3 

Hence,  in  the  absence  of  a  statute  permitting  a  disclosure,  a 
grand  juror  is  not  compellable  to  testify  as  a  witness  to  any- 
thing which  took  place  in  the  jury  room,  and  particularly  to 
the  testimony  which  was  heard,  unless  it  is  absolutely  neces- 
sary for  him  to  do  so  in  order  to  prevent  a  miscarriage  of  jus- 
tice.4 

He  can  not  be  compelled  to  disclose  as  a  witness  the  number 
of  grand  jurors  concurring  in  the  finding  of  an  indictment,5  or 

1  State  v.  Duffy,  57  Conn.  525;  Peo-  tained  and  an  energetic  administra- 
ple  v.  Dohring,  59  N.  Y.  374;  Reg.  v.  tion  of  criminal  justice  be  secured. 
Harvey,  8  Cox  C.  C.  99.  Com.  v.  Hill,  65  Mass.  137, 140,  and  see 

2  Reg.  v.  Gazard,  8  C.  &  P.  595.  But  remarks  of  court  in  States.  Baker,  20 
a  judge  can  not  be  interrogated  as  to  Mo.  338,  345. 

privileged  communications  with  his  4  State  v.  Oxford,  30  Tex.  428,  431 ; 
colleagues.  1  Wharton  on  Ev.,  600.  State  v.  Hamlin,  47  Conn.  95, 114,  115; 
Or  as  to  the  grounds  upon  which  he  State  v.  Davis,  41  Iowa  311,  316;  Un- 
decided a  case.  Agan  v.  Hey,  30  Hun  derhill  on  Evidence,  §  176.  It  is  im- 
(N.  Y.)  591.  material  that  the  juror  was  not  sworn 

3  Little's  Case,  25  Gratt.  (Va.)  921,  to  secrecy.  Littler.  Com.,  25  Gratt. 
930 ;  Com.  v.  Scowden,  92  Ky.  120, 123.  921,  930. 

The  free,  impartial  and  unbiased  ad-  5  Reg.  v.  Marsh,  6  Ad.  &  E.  236,  250; 

ministration  of  justice  requires  that  Reg.  v.  Russell,  1  Carr.  &  M.  247;  State 

proceedings  of  grand  jurors  shall  be  v.   Baker,  20  Mo.  338,  345;    State  v. 

kept    secret    in    order    that    perfect  Johnson,  115  Mo.  480,  22  S.  W.  Rep. 

freedom  of  deliberation  and  opinion  463.  See,  contra,  Low's  Case,  4  Green], 

among  jurors  may  be  effectually  ob-  (Me.)  439,  446,  453,  holding  that  the 


§191  PRIVILEGED    COMMUNICATIONS.  239 

to  state  the  evidence  on  which  it  was  found  in  order  to  impeach 
it,1  or  what  opinion  any  juror  expressed,  or  how  any  juror 
voted  on  any  question. 

It  is  the  policy  of  the  law  that  all  facts  which  are  brought 
out  in  the  preliminary  inquiry  before  the  grand  jury  should 
be  forever  secret.  Persons  who  are  present  in  the  grand  jury 
room  but  not  under  an  oath  of  secrecy,  as  the  clerk  to  the  grand 
jury,2  or  the  state's  attorney,8  the  witnesses  or  any  other  per- 
sons,4 are  not  competent  as  witnesses  to  prove  anything  that 
was  said  or  done. 

An  indictment  when  found  by  the  grand  jury  and  filed 
in  court  is  a  judicial  record  presumptively  true  and  correct. 
It  can  not  be  collaterally  impeached  by  evidence  on  the  trial 
after  the  defendant  has  pleaded.  But  where  justice  requires  it, 
an  indictment  or  presentment  will  be  set  aside  by  the  court  on 
motion  for  proper  cause.  On  such  a  motion  a  grand  juror 
may  testify  that  the  indictment  was  indorsed  "a  true  bill  "  by 
mistake,5  or  that  the  jury  acted  upon  evidence  and  not  upon 
their  own  knowledge  or  observation  in  making  a  presentment,8 
or  that  some  mistake,  misunderstanding  or  irregularity  has 
occurred  which  would  justify  setting  it  aside.7  So,  too,  a  grand 
juror  has  been  permitted  to  testify  to  what  the  defendant  stated 
and  confessed  to  the  grand  jury  ;8  that  he  manifested  great 
anxiety  to  fix  the  charge  upon  another,9  and  that  a  person 
named  was  not  a  witness  before  the  grand  jury.10 

concurrence  of  twelve  or  more  in  a  41  Chit.  C.  L.  317;  Rose.  148;  State 

bill  is  not  a  secret,  but  a  result  which  v.  Fasset,  16  Conn.  457,  470. 

the  grand  jury  of  necessity  disclose  5  State  v.  Horton,  63  N.  Car.  595. 

publicly  every  time  they  promulgate  6Com.  v.  Green.  126  Pa.  St.  531,536. 

tlieir  decision  on  any  bill  before  them.  'People    v.    Hulbut,   4   Denio   133, 

See,  also,   Sparrenberger  v.  State,  53  136;  Com.  v.  McComb,  157  Pa.  St.  611 ; 

Ala.  481,  486.  People  v.  Briggs,  60  How.  Pr.  17. 

1  People  v.  Hulbut,  4  Denio  133, 135;  8  United  States  v.  Porter,  2  Cranch 
Stale  v.  Comeau,  48  La.  An.  249, 19  So.  C.  C.  60,  63 ;  United  States  v.  Charles, 
Rep.  130.     See,  ante,  §§  25-29.  2  Cranch  C.  C.  76,  77. 

2  12  Vin.  Abr.  38.  9  State  v.  Broughton,  7  Ired.  (N.Car.) 
3McLellan    v.   Richardson,  13  Me.    96,101. 

82.  "  Com.  v.  Hill,  11  Cush.  137. 


240  CRIMINAL  EVIDENCE.  §  192 

§  192.  Statutory  regulation  of  the  competency  of  grand  ju- 
rors.— The  common  law  obligation  of  secrecy  incumbent  upon 
grand  jurors  is  generally,  if  not  universally,  confirmed  by 
statutes  in  the  several  states,  which,  being  remedial  in  their 
character,  should  be  strictly  construed.  Their  operation  is 
usually  confined,  in  express  terms,  to  the  evidence  and  the 
names  of  the  witnesses  who  appear  before  the  grand  jury.  As 
to  other  matters  within  the  knowledge  of  its  members,  the  com- 
mon law  rules  still  suffice.  Some  states  have,  in  recent  years, 
enacted  statutes  permitting  evidence  given  before  the  grand 
jury  to  be  disclosed,  and  making  a  grand  juror  a  competent 
witness  in  certain  cases.  First,  where  it  is  material  to  ascer- 
tain whether  the  testimony  of  a  witness  before  the  grand  jury 
is  consistent  with  or  different  from  the  evidence  of  the  same 
witness  at  the  trial,1  and,  second,  to  disclose  the  testimony 
given  before  them  of  any  witness  upon  a  charge  against  him 
of  perjury.  Statutes  of  this  sort  must  be  strictly  construed  and 
it  is  doubtless  the  rule,  that  if  such  a  statute  expressly  states 
in  what  cases  a  grand  juror  may  disclose  evidence  which  he 
has  heard,  he  can  do  so  in  no  other.2  The  cases,  however,  are 
not  harmonious  in  construing  such  statutes,  and  in  some  of  the 
states  grand  jurors  have  been  permitted  to  divulge  evidence 
given  before  them  in  cases  that  could  by  no  means  be  brought 
under  the  statute.3 

Prosecutions  for  perjury  committed  by  witnesses  testifying 
before  the  grand  jury  have  been  comparatively  rare.  It  is  a 
well-settled  rule,  however,  both  at  common  law4  and  by  stat- 

1  Little  v.  Com.,  25  Gratt.  (Va.)  921,  S.  W.  Rep.  205;  State  v.  Hayden,  45 
931;  Com.  v.  Mead,  12  Gray  (Mass.)  Iowa  11,  15;  Ruby  v.  State,  9  Tex. 
167,  170,  17]  ;  United  States  v.  Reed,  2  App.  353,  356;  Spratt  v.  State,  8  Mo. 
Blatchf .  435,  465 ;  People  v.  Hulbut,  4  247 ;  State  v.  Beebe,  17  Minn.  241 ;  State 
Denio  133, 135 ;  Hinshaw  v.  State  (Ind.,  v.  Grady,  84  Mo.  220 ;  Jenkins  v.  State, 
1897),  47  N.  E.  Rep.  157.   The  witness  35  Fla.  737,  18  So.  Rep.  182. 

must  be  asked  if  he  has  not  made  cer-  3  State  v.  Moran,  15  Ore.  262,  14  Pac. 

tain  statements  before  the  grand  jury.  Rep.  419 ;  State  v.  Broughton,  7  Ired. 

Jones  v.  Turpin,   6   Heisk.  181,  185;  (N.  C.)  96;  People  v.  Young,  31  Cal. 

Gordon  v.  Com.,  92  Pa.  St.  216,  221 ;  563;  State  v.  Wood,  53  N.  H.  484; Hin- 

Reg.  v.  Gibson,  1  Carr.  &  M.  672.  shaw  v.  State  (Ind.,   1897),  47  N.  E. 

2  State  v.  Gibbs,  39  Iowa  318,  322;  Rep.  157. 

Com.  v.  Scowden,  92  Ky.  120,  122,  17        4Thomp.  &  M.  on  Jiaries,  744;  State 


§193  PRIVILEGED  COMMUNICATIONS.  -11 

ute,  that  any  member  of  the  grand  jury  may  be  compelled  to 
testify  to  the  evidence  of  the  accused  given  before  the  grand 
jury.  If  this  were  not  permitted  it  is  very  possible  that  un- 
truthful witnesses  would  be  able  to  commit  perjury,  before  the 
grand  jury,  with  perfect  impunity,  while  subjecting  all  per- 
sons against  whom  they  might  cherish  animosity  to  accusa- 
tions and  arrest.1  The  secrecy  of  the  grand  jury  proceedings  is 
due  to  the  public  alone  and  is  to  protect  the  jurors.  It  can  not 
be  claimed  as  a  privilege  by  a  witness  who  testifies  falsely  be- 
fore a  grand  jury  and  who  is  subsequently  indicted  for  the  per- 
jury.2 

§  193.  Evidence  of  traverse  jurors. — As  regards  traverse  ju- 
rors the  rule  seems  now  to  be  that  they  may  testify  only  to  facts 
or  communications  referring  to  their  actions  as  individuals  while 
separated  from  their  associates.  They  may  testify  to  what 
third  persons  said  or  did  to  them  as  individual  jurors.  But 
the  motives  and  reasons  of  the  jury  and  the  transactions  and 
communications  referring  to  the  subject-matter  under  their 
consideration  as  an  official  body,  and  which  were  made  in 
their  capacity  as  jurors,  are  privileged,  whether  made  in  the 
jury  room  or  elsewhere.3  Evidence  from  the  jurors  to  show 
their  ignorance,4  or  misconduct,5  or  to  impeach  their  verdict 
for  the  purpose  of  obtaining  a  new  trial,  can  not  be  received.6 

v.  Fasset,  16  Conn.  457,  468 ;  Stater.  5 State  v.  Wood,  124  Mo.  412,  417, 

Reed,  2  Blatchf.  C.  C.  435,  466;  Peo-  27  S.  W.  Rep.  1114;  State  v.  Best,  111 

pie  v.  Young,  31  Cal.  563.  N.  Car.  638,  643;  State  v.  McLeod,  1 

1  State  v.  Broughton,  7  Ired.  (N.  C.)  Hawkes  (N.  Car.)  344,  346;  Taylor  ». 
96,101 ;  State  v.  Benner,  64  Me.  267,  285.  Com.,  90  Va.   109,  117;   State  v.  Du- 

2  People  v.  Young,  31  Cal.  563,  564.  senberry,  112  Mo.  277,  295;  State  v. 
On  the  incompetency  of  grand  jurors  Plum,  49  Kan.  679;  Mattox  v.  United 
as  witnesses,  see,  Thompson  &  Mer-  States,  146  IT.  S.  140;  Heller  v.  Peo- 
riam  on  Juries,  701-707,  where  the  pie,  22  Colo.  11,  43  Pac.  Rep.  124; 
subject  is  exhaustively  discussed.  Carr  v.  State,  96  Ga.  284,  22  S.  E.  Rep. 

3  Com.  v.  White,  147  Mass.  76,  80.  570;  Mitchell  v.  State,  34  Tex.  Cr.  Rep. 
For  a  general  discussion  Of  this  sub-  311,  33  S.  W.  Rep.  367. 

ject  and  cases,  see  Underhill  on  Ev.,  6  In  Woodward  v.  Leavitt,  107  Mass. 

§  176.  453,  461,  where  this  subject  is  fully 

4 State  v.  Cobbs,  40  W.  Va.  718,  22  discussed,    the     court    says:      "The 

S.  E.  Rep.  310.  proper  evidence  of  the  decision  of  the 

16— Cr.  Ev. 


242 


CRIMINAL    EVIDENCE. 


§193 


The  admission  of  such  evidence  is  contrary  to  public  policy  and 
injurious  to  the  administration  of  justice.  It  would  expose  the 
jurors  to  offers  of  bribes  if  a  new  trial  could  be  procured  for  the 
accused  upon  the  affidavits  of  jurors.  But  the  evidence  of  a 
juror  may  be  introduced  to  show  the  misconduct  or  mistakes 
of  others.  Thus  the  affidavit  of  a  juryman  has  been  received 
to  show  that  the  foreman  made  a  mistake  in  announcing  a  ver- 
dict, or  the  clerk  a  mistake  in  entering  it,  or  to  show  the  mis- 
conduct of  the  officer  having  the  jury  in  charge.  And  the 
general  rule  that  a  verdict  may  not  be  impeached  is  not  with- 
out exceptions,1  as  for  example  where  it  appeared  that  a  verdict 
of  guilty  was  rendered  on  insufficient  evidence  with  the  expec- 
tation of  executive  clemency.  So  it  may  be  shown  by  a  juror's 
testimony  that  the  trial  judge  promised  them  if  they  would  con- 
vict they  might  rely  upon  him  to  be  clement  to  the  prisoner.8 


jury  is  their  verdict  returned  by  them 
upon  oath  and  affirmed  in  court ;  it  is 
essential  to  the  freedom  and  inde- 
pendence of  their  deliberations  that 
their  discussions  should  be  secret  and 
inviolable.  No  affidavit  or  other 
sworn  statement  will  be  received  to 
impeach  a  verdict,  to  explain  it  or  to 
show  on  what  grounds  it  was  ren- 
dered." Kelley  v.  State  (Fla.,  1897), 
22  So.  Rep.  303;  Weatherford  v.  State 


31  Tex.  Cr.  Eep.  530,  536 ;  McTyier  v. 
State,  91  Ga.  254,  260 ;  Smith  v.  State, 
59  Ark.  132,  140;  State  v.  Senn,  32 
S.  Car.  392,  408;  State  v.  Bennett,  40 
S.  Car.  308,  311.  As  to  testimony 
of  judges  and  jurors  as  to  identity 
of  crime  and  prisoner,  see  §  197, 
post. 

1  Crawford  v.  State,  2  Yerg.  (Tenn.) 
60,  67. 

2  McBean  v.  State,  83  Wis.  206,  211. 


CHAPTER  XVI. 

EVIDENCE  OF  FORMER  JEOPARDY. 

§194.   Plea  of  former  conviction   or  §  196.  Essential  facts  to  be  shown. 

acquittal.  197.  Identity  of  crime  and  person. 

195.   Record  of  former  trial  in  evi-  198.  Criminal  judgments  as  admis- 

dence.  sions. 

§  194.  Plea  of  former  conviction  or  acquittal. — The  pleas  of 
autrefois  acquit  and  autrefois  convict  are  pleas  in  bar  which 
are  favorably  regarded  by  the  law.  By  a  plea  of  autrefois 
acquit  the  accused  in  effect  claims  that  he  has  already  been 
acquitted  of  the  identical  crime  with  which  he  now  stands  in- 
dicted, while  by  the  plea  of  antrefois  convict  he  declares  that  he 
was  formerly  convicted  of  the  same  crime.  Any  extended  con- 
sideration of  the  form  of  such  pleas  or  of  the  order  or  method 
in  which  they  must  be  made  is  manifestly  out  of  place  here. 
They  will  be  found  sufficiently  discussed  in  works  treating  of 
the  details  of  criminal  trial  procedure.1  Here  we  can  only 
consider  what  facts  must  be  alleged  and  proved  under  these 
pleas  and  the  mode  of  proving  them. 

§195.  Record  of  former  trial  in  evidence. — Though  it  is 
never  necessary  to  prove  a  formal  sentence  to  sustain  a  plea 
of  autrefois  convict  or  acquit,2  it  is  always  necessary  to  show 
that  the  trial  came  to  an  actual  end.  The  best  evidence  of 
this  fact  is  the  judicial  record  of  the  proceedings.  This  must 
be  produced  or  its  absence  properly  accounted  for,8  and,  if  it 
has  not  been  made  up,  a  continuance  must  be  granted  in 
order  that  the  accused  may  have  an  opportunity,  by  means  of 

1 1  Bish.  New  Cr.  Pro.,  §§810-831.        State  v.  Benham,  7  Conn.  414;   Shep- 
2  State   v.  Elden,  41  Me.  165,  168;     herd  v.  People,  25  N.  Y.  406,  420,  421. 

3  Walter  v.  State,  105  Ind.  589,  593. 

(243) 


244  CRIMINAL  EVIDENCE.  §  190 

a  mandamus,  to  compel  the  clerk  to  make  it  up.1  Hence,  in 
most  cases,  the  record,  or,  where  it  is  permitted  by  statute,  a 
duly  certified  copy,  is  the  only  admissible  evidence  to  show  the 
fact  of  a  former  conviction  or  acquittal.  These  facts  can  not 
be  proved  by  parol.2  The  record,  however,  is  inadmissible  on 
this  point  if  it  shall  appear  that  the  verdict  was  set  aside,  for 
the  verdict  and  all  its  incidents  stand  or  fall  together.3  The 
former  record,  so  far  as  it  is  admissible,  is  conclusive  upon 
both  parties.4  The  general  rule  that  a  prior  judgment  on  the 
merits  is  conclusive  upon  the  parties  thereto  and  will  be 
deemed  to  have  established  all  facts  which  were  essential  to 
the  rendition  of  the  judgment  in  any  subsequent  proceeding 
between  the  same  parties  is  applicable  to  criminal  trials.5 

§  196.  Essential  facts  to  be  proved. — The  facts  that  a  valid 
indictment  was  found  against  the  accused,  that  he  pleaded 
thereto,  and  was  regularly  acquitted  or  convicted  must  be 
proved  by  relevant  evidence  to  the  satisfaction  of  the  court. 
In  the  first  place,  it  may  be  said  that  a  plea  of  former  acquit- 
tal or  conviction  is  not  good  unless  it  shall  satisfactorily 
appear  in  evidence  that  the  previous  trial  was  upon  the  merits.6 

So,  too,  the  general  rule  is  well  settled  that  a  judgment  in 
criminal  as  in  civil  cases,  in  order  to  be  conclusive  as  a  bar  on 
the  parties  in  subsequent  proceedings,  must  have  been  ren- 
dered by  a  court  having  proper  jurisdiction,  and  whose  pro- 
ceedings   were    wholly    regular.7     If    the    indictment    on    the 

*Rex  v.  Bowman,  6  C.  &  P.  101.  5Com.  v.  Evans,  101  Mass.  25,  27; 

2  Jacobs  v.  State,  4  Lea  196;  Bailey  Com.  v.  Austin,  97  Mass.  595,  597; 
v.  State,  26  Ga.  579,  581;  Brown  v.  State  v.  Lang,  63  Me.  215,  220.  Under- 
State,  72  Miss.  95,  97,  16  So.  Rep.  202 ;  hill  on  Ev.,  §  156. 

Walter  v.  State,   105  Ind.   589,   593;  6Com.  v.  Curtis,  Thach.  Cr.  C.  202 

Farley  v.  State,  57  Ind.  331 ;  but  com-  Halloran  v.  State,  80  Ind.  586,  591 

pare,  Durland  v.  United  States,   161  State  v.  Hodgskins,  42  N.  H.  474,  477 

U.  S.  306.  State  v.  White,  8  Wash.  230,  35  Pac. 

3  Bailey  v.  State,  26  Ga.  579,  581.  Rep.  1100. 

4  Myers  v.  State,  92  Ind.  390,  396;  7NcNeil  v.  State,  29  Tex.  App.  48, 14 
Smurr  v.  State,  105  Ind.  125,  133;  S.  W.  Rep.  393;  Blyew  v.  Com.,  91 
Com.  v.  Evans,  101  Mass.  25,  27 ;  Com.  Ky.  200,  15  S.  W.  Rep.  356 ;  Alford  v. 
v.  Goddard,  13  Mass.  455,  457;  State  State,  25  Fla.  852;  Smith  v.  State,  67 
v.  Kelsoe,  11  Mo.  App.  91,  92.  Miss.  116;   State  v.  Phillips,    104  N. 


§  197 


EVIDKN'CK    OK     KOKMKU    JKol'ARDY. 


24; 


former  trial  was  bad,  so  that  a  conviction  thereon  would  he  ;i 
nullity,  a  plea  of  former  conviction  or  acquittal  must  be 
rejected.1  Usually,  the  record  is  proper  evidence  to  prove  that 
the  court  had  jurisdiction,  and,  perhaps,  its  production  may 
be  required  as  the  best  evidence  of  that  fact.2 

§  197.  Identity  of  crime  and  person. — The  accused  must 
show  by  evidence  independently  of  the  record  the  identity  of 
the  crime  of  which  he  was  convicted  or  acquitted  with  that  for 
which  he  is  now  on  trial  as  regards  time,3  place  and  character.4 
The  identity  of  the  accused  with  the  person  formerly  acquitted 
or  convicted  must  also  be  shown,  though  this  may  usually  be 
presumed  from  identity  of  name  in  the  absence  of  any  evidence 
to  the  contrary.5  The  burden  of  proof  as  to  all  these  facts  is 
upon  the  defendant.6  Parol  evidence  from  a  judge,  juror  or 
witness  at  the  former  trial  is  admissible  to  show  the  identity 
both  of  the  person  and  of  the  crime.7 

Car.  786;  People  v.  Hamberg,  84  Cal.  Rep.  662;  State  v.  Robinson,  116  N. 

46S;  State  v.  Hodgskins,42  N.  H.  474,  Car.  1046,  21  S.  E.  Rep.  701;  Reddy 

477;  State  v.   Odell,  4  Blackf.  (Ind.)  v.  Com.   97  Ky.  784,  31  S.  W.  Rep. 

156 ;  Com.  v.  Peters,  12  Met.  (Mass.)  730;    State    v.    Waterman,    87   Iowa 

397;    Com.   v.    Bosworth,    113    Mass.  255;    State  v.    Wister,   62   Mo.    592; 

200,202;  Brown  v.  State,  105  Ala.  117,  Burk  v.  State,  81  Ind.  128;  King  v. 

16  So.  Rep.   929;   People  v.  Connor,  State,  43  Tex.  351 ;  State  v.  Atkinson, 

142   N.  Y.  130,  133;  Dulin's  Case,  91  9  Humph.  (Tenn.)  677;  Davidson  v. 

Va.    718,    20    S.    E.    Rep.   821,    822;  State,  99  Ind.  366,  367 ;  Foster  v.  State, 

State  v.   Sommers,  60  Minn.  90;   61  39  Ala.  229,  234 ;  Vowells  v.  Com.,  83 

N.  W.  Rep.  907.     Underhill  on  Ev.,  Ky.  193;  Sims  v.  State,  21  Tex.  App. 

§152.  649;  Faulk  v.  State,  52  Ala.  415,  417; 

JTimon  v.  State,  34  Tex.  Crim.  363,  Jenkins  v.  State,    78   Ind.    133,    134; 

30  S.   W.   Rep.   808,   1063;    State   v.  Beyerline  v.  State  (Ind.,  1897),  45  N. 

Littschke   27   Ore.  189,  40  Pac.  Rep.  E.  Rep.  772. 
167;  United  States  v.  Barber,  21  D.  C. 
456;   Shepler  v.   State,  114  Ind.  194, 
198;  Ford  v.  State,  7  Ind.  App  567, 
570. 

2  State  v.  Salge,  2  Nev.  321 ;  State  v. 
Spencer,  10  Humph.  (Tenn.)  431,  432; 
Brill  v.  State,  1  Tex.  App:  152. 


5  State  v.  Kelsoe,  11  Mo.  App.  91,  92. 

6  Brown  v.  State,  72  Miss.  95,  97; 
Cooper  v.  State,  47  Ind.  61;  Com.  v. 
Daley,  4  Gray  (Mass.)  209;  Com.  v. 
Hoffman,  121  Mass.  369. 

7Bainbridge  v.  State,  30  Ohio  St. 

264;    Rocco   v.   State,   37  Miss.   357; 

'People  v.  Gault  104  Mich.,  575,  62    Brown  v.  State,  72  Miss.  95,  97;  Page 

N.  AV.  Rep.  724;  Reed  v.  State  (Tex.,    v.  Com.,  27  Gratt.  (Va.)  954;  Com.  v. 

1895),  29  S.  W.  Rep.  1085.  Chilson,  2  Cush.  (Mass.)  15;  Com.  v. 

4Inman  v.  State,  30  S.  W.  Rep.  219;     Austin,  97  Mass.  595,  597;    Com.   v. 

State  v.  Chinault,  55  Kan.  326,  40  Pac.     Dillane,  11  Gray  (Mass.)  67;  State  v. 


24G  CRIMINAL  EVIDENCE.  §  198 

§  198.  Criminal  judgments  as  admissions. — A  judgment  in 
a  criminal  trial  may  under  some  circumstances  be  admissible 
in  a  subsequent  civil  proceeding.  Thus,  in  an  action  to  re- 
cover damages  for  an  assault  and  battery,  the  plaintiff  may 
prove  that  the  defendant  was  arrested  and  placed  on  trial  for 
the  same,  and  also  that  he  was  tried  and  found  guilty,  or  that 
he  pleaded  guilty  and  was  sentenced.  Such  a  determination, 
deliberately  made,  is  of  the  highest  value  as  evidence  on  the 
issue  in  the  civil  proceeding.1 

Waterman,  87  Iowa  255,  257;  State  v.  47,  49;  Walter  v.  State,  105  Ind.  589, 

Maxwell,  51  Iowa  314 ;    Emerson  v.  593.    Ante,  §§  190,  193. 

State,  43  Ark.  372 ;  Swalley  v.  People,  x  Green  v.  Bedell,  48  N.  H.  546,  549. 
116  111.  247;  Dunn  v.  State,  70  Ind. 


CHAPTER  XVII. 

THE  COMPETENCY  OF  WITNESSES. 

§  199.   Definition  and  formal  require-  §  206.   Incompetency    of     witnesses 

ments  of  the  oath.  caused  by  conviction  of  in- 

200.  When  witness  may  affirm.  famous  crime. 

201.  Religious  belief  of  the  witness.  207.  The  pardon  of  the  convict — 

202.  Insanity — When  disqualifying  When  restoring  competency. 

a  witness.  208.  Mode  of  proving  pardon — Parol 

203.  Mode  of  proving  insanity  of  evidence. 

witness.  209.    Statutory  regulations  removing 

204.  Deaf  mutes  as  witnesses.  the  incompetency  of  persons 

205.  Children  on  the  witness  stand.  convicted  of  crime. 

210.   Statutes  construed. 

§  199.    Definition  and  formal  requirements  of  the  oath. — An 

oath  has  been  defined  as  an  "outward  pledge  given  by  the 
person  taking  it  that  his  attestation  or  promise  is  made  under 
an  immediate  sense  of  his  responsibility  to  God."1  The  defi- 
nition just  given,  it  may  be  noted,  wholly  omits  the  impre- 
catory elements  of  the  oath  which  were  so  prominent  in  the 
definitions  of  the  common  law.2  It  is  certainly  consistent  with 
the  most  modern  ideas  upon  the  subject,  and  less  calculated  to 
offend  persons  who  may  entertain  conscientions  scruples 
against  invoking  God's  wrath  upon  themselves. 

In  criminal  courts  of  inferior  jurisdiction,  where  the  issues  of 
fact  are  determined  by  the  magistrate  without  the  intervention 
of  a  jury,  the  oath  is  usually  administered  by  the  judge  him- 
self.    In  the  higher  courts  this  duty  is  performed  by  the  clerk, 

1  Tyler  on  Oaths,  London,  1835.  eration  by  which  a  person  renounces 

21  Stark.  Ev.,  22.     In  Rex  v.  White,  the  mercy  and  imprecates  the  ven- 

2  Leach  Cr.  482  (1786),  the  court  thus  geance  of    heaven,   if    he    does   not 

defines  an  oath :     "A  religious  assev-  speak  the  truth." 

(247) 


248  CRIMINAL  EVIDENCE.  §  200 

the  formula  employed  being  usually  "you  do  solemnly  swear 
that  you  will  tell  the  truth,  the  whole  truth  and  nothing  but 
the  truth,  as  a  witness  in  this  issue  now  joined  between  the 
people  and  A.  B." 

The  witness  expresses  his  assent  to  this  affirmation  by  rais- 
ing his  hand  only,  or  by  placing  it  upon  a  copy  of  the  Bible 
while  the  oath  is  being  administered,  and  by  kissing  the  book 
at  its  conclusion.1  But  the  main  requirement  is  that  the  wit- 
ness shall  feel  that  he  is  bound  by  the  oath,  and  if  he  feels 
that  he  is  bound  the  formula  is  immaterial.2  If  the  court  is 
informed  by  the  witness  or  by  any  other  person  that  the  wit- 
ness is  an  adherent  of  a  religious  system  other  than  Christi- 
anity, he  must  be  asked  what  form  of  oath  he  considers  most 
binding  on  his  conscience.  If  the  court  is  satisfied  that  there 
is  any  peculiar  form  which  the  witness  regards  as  more  obliga- 
tory than  that  usually  employed  he  should  be  sworn  accord- 
ingly.3 

§  200.  When  witness  may  affirm. — The  scriptural  injunction 
"Swear  not  at  all"  is  considered  by  many  as  an  express  prohi- 
bition of  oaths  of  every  sort.  Such  persons  on  this  account 
decline  to  participate  in  or  give  their  assent  to  any  form  of 
words  which  involves  or  implies  an  invocation  of  God.  The 
wishes  and  conscientious  scruples  of  all  such  persons  are  care- 
fully respected  by  the  law,  both  common  and  statutory,  and  to 
them  a  question  in  the  following  form  is  put:  "  You  do  sol- 
emnly, sincerely  and  truly  declare  and  affirm  that  you  will  state 
the  truth,  the  whole  truth  and  nothing  but  the  truth,  in  the 

1  See  Underhill  on  Ev.,  §  315,  and  have    been    always    different    in  all 
cases  there  cited.  countries,  according  to   the  different 

2  In  Omichund  v.  Barker,  Willes,  p.  laws,  religion  and  constitution  of 
547,  the  court  said:  "It  is  very  plain  those  countries.  But  still  the  sub- 
from  what  I  have  said  that  the  sub-  stance  is  the  same,  which  is  that  God 
stance  of  an  oath  has  nothing  to  do  in  all  of  them  is  called  upon  as  a  wit- 
with  Christianity,  only  that  by  the  ness  to  the  truth  of  what  we  say." 
Christian  religion  we  are  put  still  3  People  v.  Green,  99  Cal.  564,  570; 
under  great  obligation  not  to  be  guilty  State  v.  Chyo  Chiagk,  92  Mo.  395,  410 ; 
of  perjury.  The  forms  indeed  of  an  1  Greenl.,  §371;  Whart.  Cr.  Ev., 
oath    have    been    since   varied,   and  §  354. 


§201 


TIIK    COMPETENCY    OF    WITNl 


249 


issue  now  joined  between  the  people  of  the  slate,  etc.,  and  the 
defendant."  The  affirmative  answer  of  the  witness  given  to 
this  question  is  equivalent  to  an  oath,1  and  renders  him  liable 
to  a  prosecution  for  perjury  if  lie  testifies  falsely.1 

A  witness  who  is  sworn  before  a  separate  trial  is  ordered, 
where  several  are  jointly  indicted,  must  be  re-sworn  when 
testifying  at  the  separate  trial  of  each.3 

§201.  Religious  belief  of  the  witness. — The  common  law, 
because  of  the  great  importance  which  in  early  times  was  at- 
tached to  the  religious  element  of  an  oath,  declared  all  persons 


1  State  v.  Welch,  79  Me.  99,  103. 

2  State  v.  Whisenhurst,  2  Hawks 
(N.  Car.)  458,  459.  If  the  witness, 
when  sworn,  fails  to  object  to  the 
form  of  oath  as  taken  by  him,  he  is 
still  liable  for  perjury,  though  he  did 
not  consider  himself  bound  thereby. 
State  v.  Whisenhurst,  2  Hawkes  (N. 
Car.)  458,  459.  It  is  not  error  in  a 
criminal  trial,  if  the  accused  has  as- 
sumed various  aliases,  for  the  clerk  to 
repeat  them  in  swearing  a  witness, 
stating  also  his  true  name.  If  the 
aliases  are  set  forth  in  the  indictment, 
it  is  difficult  to  understand  how  their 
repetition  by  the  clerk  in  the  hearing 
of  the  jurors  will  prejudice  the  ac- 
cused. People  v.  Everhardt,  104  N.  Y. 
591,  596. 

3  Abbott  Crim.  Brief,  336;  Babcock 
v.  People,  15  Hun  (N.  Y.)  347.  On  a 
trial  for  felony,  it  is  error  to  swear  a 
witness  while  the  accused  is  not  in 
court.  Bearden  v.  State,  44  Ark.  331. 
See  Underbill  on  Ev.,  §§  346,  367. 
But  the  objection  that  a  witness 
was  not  properly  sworn  can  not  be 
raised  for  the  first  time  when  a  mo- 
tion is  made  for  a  new  trial.  Gold- 
smith v.  State,  32  Tex.  Cr.  Rep.  112, 
115,  22  S.  W.  Rep.  405. 

In  Omichund  v.  Barker,  1  Atkyns, 
p.   33,    the   court  quotes   Puffendorf, 


4th  book,  §  4,  p.  122:  "That  part  of 
the  form  in  oaths  under  which  God  is 
invoked  as  a  witness,  or  as  an  avenger, 
is  to  be  accommodated  to  the  religious 
persuasion  which  the  swearer  enter- 
tains of  God ;  it  being  void  and  insig- 
nificant to  compel  a  man  to  swear  by  a 
God  in  whom  he  doth  not  believe,  and 
therefore  doth  not  reverence ;  and  no 
one  thinks  himself  bound  to  the  Di- 
vine Majesty  in  any  other  words,  or 
under  any  other  titles  than  what  are 
agreeable  to  the  doctrines  of  bis  own 
religion,  which,  in  his  judgment,  is 
the  only  true  way  of  worship.  And 
hence,  likewise,  it  is  that  he  who 
swears  by  false  gods,  yet  such  as 
were  by  him  accounted  true,  stands 
obliged,  and  if  he  deceives  is  really 
guilty  of  perjury,  because,  whatever 
his  peculiar  notions  are,  he  certainly 
had  some  sense  of  the  Deity  before 
his  eyes,  and  therefore  by  willfully 
forswearing  himself,  he  violated,  as 
far  as  he  was  able,  that  awe  and  rev- 
erence he  owed  to  Almighty  God ; 
yet  when  a  person,  requiring  an  oath 
from  another,  accepts  it  under  a  form 
agreeable  to  that  worship  which  the 
swearer  holds  true,  and  he  himself 
holds  for  false,  he  can  not  in  the  least 
be  said  thereby  to  approve  that  wor- 
ship." 


250  CRIMINAL    EVIDENCE.  §  201 

to  be  incompetent  as  witnesses  who  did  not  believe  in  a  Deity 
who  would  punish  perjury.1  And  it  was  said  with  much  vehe- 
mence that  to  require  an  oath  to  be  taken  by  a  person,  who, 
like  the  atheist,  denied  his  existence,  was  a  mockery  of  justice. 
But  every  one  born  in  a  Christian  land  and  educated  under  the 
influence  of  Christianity  was  presumed,  until  the  contrary  was 
shown,  to  possess  sufficient  religious  faith  to  qualify  him  as  a 
witness.  In  any  case  he  was  only  required  to  believe  in  a 
God  who  would  punish  perjury,  and  it  was  immaterial  whether 
he  believed  that  the  culprit  would  be  punished  in  this  life  by 
the  pangs  of  remorse  or  otherwise,  or  whether  punishment 
would  be  inflicted  beyond  the  grave.2 

The  witness  could  not  usually  be  asked  directly  as  to  his 
possession  or  lack  of  possession  of  a  religious  belief.  His 
atheism  or  infidelity  must  always  be  shown  by  the  evidence  of 
other  witnesses  in  whose  presence  and  hearing  he  had  volunta- 
rily declared  his  irreligion,8  though  the  fact  that  he  had  subse- 
quently acquired  sufficient  religious  faith  to  render  him  com- 
petent might  also  be  shown.4  In  almost  every  state  of  the 
Union  statutes  have  been  enacted,  providing  in  substance  that 
no  person  shall  be  incompetent  as  a  witness  because  of  his 
belief  or  disbelief  in  the  tenets  of  any  system  of  religious 
teaching,  provided  he  understands  the  nature  of  an  oath. 

Where  such  statutory  provisions  prevail  in  conformity 
therewith,  and  having  regard  to  the  existing  federal  and  state 
constitutional  enactments  which  are  intended  to  secure  freedom 
of  religious  belief  and  worship,5  any  question  intended  to  dis- 
credit a  witness  by  showing  him  to  be  an  atheist  or  an  agnostic 
would  be  very  objectionable.6 

So,  where  it  had  been  provided  in  the  state  constitution  that 
no  person  shall  be  denied  the  enjoyment  of  any  civil  right  or 

1  Rex  v.  White,  2  Leach  Cr.  C.  482.  3  Com.  v.  Smith,  2  Gray  516. 

2Cubbison  v.  McCreary,  2  W.  &  S.  4Atwood  v.  Welton,  7  Conn.  66;  as 

(Pa.)  262;  Bush  v.  Com.,  80  Ky.  244,  regards  the  reception  of  declarations 

248;  Com.  v.  Hills,  10  Cush.  (Mass.)  to  prove  mental  conditions,  see  Un- 

530,  532;  Chappell  v.  State,  71  Ala.  derhill  on  Ev.,  §§51,  52. 

322,  324;  State  v.  Powers,  51  N.  J.  L.  5  U.  S.  Const.  Amend.,  Art.  1. 

432,  433.  6  People  v.  Copsey,  71  Cal.  548,550. 


§202  THE    COMPETENCY    OF    WITNESSES.  251 

privilege  on  account  of  his  religious  principles,  it  lias  been  held 
that  the  accused  is  not  incompetent  as  a  witness  in  his  own 
behalf  because  he  does  not  belief  in  a  God  who  will  punish 
him  if  he  perjures  himself.1 

§  202.  Insanity — When  disqualifying  a  witness. — Very  little 
distinction,  if  any,  was  made  by  the  common  law  between  the 
numerous  forms  which  insanity  assumes.  As  regards  the 
competency  of  a  person  as  a  witness,  insanity  of  any  kind,  once 
established,  seems  to  have  been  an  insurmountable  objection. 
It  was  immaterial  whether  the  person  mentally  unsound  was 
an  imbecile  or  idiot,  a  furious  maniac,  or  a  quiet  sufferer  from 
melancholia,  senile  dementia,  or  from  some  harmless  and  per- 
haps temporary  monomania.2 

It  is  now  held  universally  that  the  insanity  or  intellectual 
weakness  of  a  witness,  no  matter  what  form  it  assumes,  is  not 
a  valid  objection  to  his  competency  if,  at  the  time  he  is  testify- 
ing, he  has  mental  capacity  to  distinguish  between  right  and 
wrong,  so  far  as  the  facts  in  issue,  and  his  testimony  thereon, 
are  involved,  understands  the  nature  and  obligation  of  an 
oath,  and  can  give  a  fairly  intelligent  and  reasonable  narrative 
of  the  matters  about  which  he  testifies.3  An  inquisition  of  in- 
sanity,4 or  the  fact  that  a  person  alleges  and  endeavors  to 
prove  his  own  insanity,5  does  not  conclusively  render  him  in- 
competent as  a  witness.  A  witness  examined  out  of  court  by  a 
commission  will  be  presumed  to  be  sane.  If  evidence  of  his 
insanity   is  introduced  when  his  deposition   is   offered  to    be 

1  Peary  v.  Com.  (Va.),  3  Gratt.  632;  Reg.  v.  Hill,  15  Jur.  470,  5  Eng.  L.  & 
Hronek  v.  People,  134  111.  139,  152;  Eq.  547;  5  Cox.  C.  C.  259,  266;  District 
Ewing  v.  Bailey,  36  111.  App.  191;  v.  Amies,  107  U.  S.  519,  f>20-524 ;  Cole- 
Colter  v.  State  (Tex.,  1897),  39  S.  W.  man  v.  Com.,  25  Gratt.  (Va.)  865,  874, 
Rep.  576 ;  State  v.  Powers,  51  N.  J.  L.  875 ;  Walker  v.  State,  97  Ala.  85,  86, 12 
432,  433-436,  17  Atl.  Rep.  969.  So.  Rep.  83. 

21  Greenleaf  on  Evidence,  365;  Ros-  4  Kendall  v.  May,  10  Allen  (Mass.) 

coe's  Crim.  Evidence,  128;  Best  Ev.,  59. 

168.  5  Dickson  v.  Waldron,  135  Ind.  507, 

3 Tucker  v.  Shaw,  158  111.  326;  State  35  N.  E.  Rep.  1.  See,  ante,  §§  159-163. 
v.Brown  (Del.,  1897),  36  Atl.  Rep.  458; 


252  CRIMINAL  EVIDENCE.  §  203 

read,  the  jury  will  be  permitted  to  determine  his  mental  capac- 
ity.1 

§  203.  Mode  of  proving  insanity  of  witness. — The  objecting 
party  may  prove  the  insanity  of  the  witness  either  by  examin- 
ing him,2  or  by  other  witnesses,3  or  by  written  proof  showing 
that  he  has  been  legally  pronounced  a  lunatic. 

The  question  of  competency  is  of  course  judicial,  while  the 
credibility  of  the  testimony  is  for  the  jury  alone.  If  the  in- 
capacity has  intervened  since  the  occurrence  which  the  witness 
is  called  on  to  relate  ;  if  it  is  temporary,  and  a  speedy  restora- 
tion to  sanity  seems  probable,  the  court  may  direct  an  adjourn- 
ment.4 

If,  in  the  course  of  the  examination  of  a  witness,  it  becomes 
apparent  to  the  court  that  he  is  incompetent  because  of  in- 
sanity, the  court  may  stop  the  examination  and  instruct  the 
jury  to  disregard  his  evidence,  though  it  had  on  the  prelimi- 
nary examination  to  ascertain  competency,  pronounced  him 
sane.5 

The  testimony  of  insane  witnesses  has  usually  been  received 
because  of  the  necessity  of  the  case  and  the  absence  of  other 
witnesses.  The  jury  may  consider  the  mental  condition  of  the 
witness  at  the  time  of  the  transaction  he  describes,  and  while 
he  is  testifying,  in  order  to  determine  his  capacity  for  obser- 
vation, his  powers  of  recollection  and  his  disposition  and  abil- 
ity to  describe  events  correctly.6  If  they  disbelieve  him,  and 
his  testimony  is  uncorroborated,  the  jury  should  reject  it  alto- 
gether.7 

1  Mayor,  etc.,  v.  Caldwell,  81  Ga.  in  depriving  either  side  of  the  right  to 
76,  80.  cross-examine,  all  the  testimony  of 

2  Reg.  v.  Hill,  5  E.  L.  &  E.  547;  5  the  witness  must  be  stricken  oat. 
Cox  C.  C.  259.  People  v.  Cole,  43  N.  Y.  508,  512,  513, 

3  Livingston  v.  Kierstead,  10  Johns,  where  cross-examination  was  impos- 
362.  sible  because  of  the  serious  illness  of 

4  Wharton   on    Ev.,    §  402;    Rex  v.  the  witness. 

White,  2  Leach  482;  Rex  v.  Wade,  1  6  People  v.  N.  Y.  Hospital,  3  Abb. 

Moody  C.  C.  86;   Rex  v.  Kinloch,  18  N.   Cas.  229,  249;   Holcomb   v.    Hol- 

How.  St.  Tr.  395,402.  comb,  28  Conn.  177,  181. 

5  Reg.  v.  Whitehead,  L.R.I  C.  C.  R.  7  Worthington  v.  Mencer,  96  Ala. 
33.  If  insanity,  first  showing  itself  310,  11  So.  Rep.  72;  Reg.  v.  Hill.  5 
during  the  direct  examination,  results  Eng.  L.  &  Eq.  547. 


§  '204  THE   COMPETENCY   OF    WITNE88E8.  253 

§  204.  Deaf  mutes  as  witnesses. — The  early  common  law  n  - 
garded  the  deaf  mute  as  an  idiot.'  He  was  prima  [uric  devoid 
of  intelligence  or  understanding,  so  that  he  was  presumptively 
incompetent  as  a  witness  until  it  was  clearly  and  affirmatively 
shown  that  he  possessed  a  sufficient  degree  of  intelligence  to 
qualify  him.  The  burden  of  proving  him  competent  was  on 
the  party  calling  him  to  testify. 

At  the  present  day  the  examination  of  a  deaf  mute  upon  the 
witness  stand  may  be  carried  on  by  the  use  of  signs,  with  the 
aid  of  an  interpreter,  properly  qualified,2  and  this  may  be  done 
even  where  the  witness  can  write.3  His  evidence  is  oral  evi- 
dence, provided  the  writing  is  written  or  the  signs  made  in 
open  court.*  Expert  testimony  is  not  necessary  to  show  that  a 
deaf  mute  is  sufficiently  intelligent  in  the  opinion  of  the  wit- 
ness to  testify  as  a  witness.  His  competency  can  be  proved  by 
the  testimony  of  a  former  employer  or  any  other  person  who  is 
acquainted  with  him  who  can  testify  to  his  intelligence  and  his 
knowledge  of  the  sign  language.5 

§  205.  Children  on  the  witness  stand. — The  competency  of  a 
child  under  the  age  of  fourteen  years  to  testify  in  a  criminal 
trial  must  be  shown  to  the  satisfaction  of  the  court.  He  is  pre- 
sumptively incompetent,  but  if  he  is  shown  to  be  competent  it 
is  immaterial  how  young  he  may  be  when  he  testifies.  He  is 
competent  if  he  possesses  mental  capacity  and  memory  suf- 
ficient to  enable  him  to  give  a  reasonable  and  intelligible 
account  of  the  transaction  he  has  seen,  if  he  understands  and 
has  a  just  appreciation  of  the  difference  between  right  and 
wrong,  and  comprehends  the  character,  meaning  and  obliga- 

»4  Bl.  Com.  303^.  s  State  v.  Howard,  118  Mo.  127,  144; 

2Skaggs  v.  State,  108  Ind.  53,  56,  57 ;  Morrison  v.  Leonard,  3  C.  &  P.  127. 
Com.  v.  Hill,  14  Mass.  207;  Huston's        *  Stephen's  Digest,  art.  106;  Ritchey 

Case,  1  Leach  Cr.  C.  455,  456;  State  v.  v.  People  (Colo.,  1897),  47  Pac.  Rep. 

DeWolf,  8  Conn.  93,  99 ;  State  v.  How-  272. 

ard,  118  Mo.  127,  144;    Kirk  v.  State        5  State  v.  Weldon,  39  S.  Car.  318,  322, 

(Tex.,  1897),  37  S.  W.  Rep.  440.     See  17   S.  E.  Rep.  688;  Underhill  on  Ev., 

Underbill  on  Ev.,  §  318.  §  186. 


254 


CRIMINAL    EVIDENCE. 


§  205 


tion  of  an  oath.1  If  the  child  does  not  sufficiently  understand 
the  nature  and  obligation  of  an  oath  the  court  may,  in  its  dis- 
cretion, if  the  child  seems  to  have  the  mental  capacity  to  profit 
by  the  instruction,  allow  him  to  be  instructed  by  a  proper  per- 
son as  to  the  signification  and  obligation  of  an  oath.2  No  fixed 
rule  can  be  laid  down  as  to  the  age  a  child  under  the  age  of 
fourteen  must  have  attained  to  entitle  him  to  testify.  The 
question  of  his  competency  must  be  left  to  the  legal  discretion 
of  the  trial  judge,  leaving  it  to  the  jury  to  determine  the  weight 
and  credit  of  his  evidence.  In  the  absence  of  clear  abuse  the 
judicial  discretion  is  not  reviewable.3 


xBrasier's  Case,  1  Leach  Cr.  C.  237; 
Davis  v.  State,  31  Neb.  247;  State  v. 
MeGuff,  88  Ala.  147,  151;  McGuire  v. 
People,  44  Mich.  286,  287;  Hoist  v. 
State,  23  Tex.  App.  1,  8;  Moore  v. 
State,  79  Ga.  498,  503 ;  Com.  v.  Hutch- 
inson, 10  Mass.  225;  State  v.  Whit- 
tier,  21  Me.  341,  347;  Williams  v. 
United  States,  3  App.  D.  C.  335 ;  Will- 
iams v.  State  (Ala.,  1896),  19  So.  R. 
530;  People  u.Craig, 111  Cal.460,44Pac. 
Rep.  186;  State  v.  Cadotte,  17  Mont. 
315,  42  Pac.  Rep.  857;  Gaines  v.  State 
(Ga.,  1897),  26  S.  E.  Rep.  760;  Terri- 
tory v.  DeGutman  (N.  Mex.,  1896),  42 
Pac.  Rep.  68. 

2  Rex  v.  White,  2  Leach  Cr.  C.  482; 
Rex  v.  Wade,  1  Mood.  Cr.  C.  86,  87 ; 
Com.  v.  Lynes,  142  Mass.  577-580,  2 
Russ.  Cr.  590.  Contra,  Rex  v.  Will- 
iams, 7  C.  &  P.  320,  321 ;  Reg.  v.  Nich- 
olas, 2  C.  &  K.  246. 

3  People  v.  Frindel,  58  Hun  482,  484; 
Hawkins  v.  State,  27  Tex.  App.  273 ; 
Com.  v.  Robinson,  165  Mass.  426,  43 
N.  E.  Rep.  121 ;  State  v.  Sawtelle,  32 
Atl.  Rep.  831,  66  N.  H.  488;  State  v. 
Reddington  (S.  Dak.,  1896),  64  N.  W. 
Rep.  170.  "Children  of  this  age  have 
not  sufficient  development  to  under- 
stand the  nature  and  effect  of  an  oath, 
especially  if  their  parents  have  neg- 
lected their  education  in  religious  and 


moral  truths.  They  may  have  some 
knowledge  that  it  is  wrong  to  tell  a 
lie.  yet  this  may  be  so  slight  as  to  pro- 
duce no  decided  or  lasting  impression 
on  their  minds,  but  leave  them  in  a 
decidedly  chaotic  state,  in  which  they 
may  easily  be  led  to  believe  that  the 
things  that  others  in  authority  over 
them  instruct  them  to  say  are  the  in- 
distinct thing  called  truth  ;  and  there- 
fore they  must  repeat  what  they  are 
told  to  say  or  what  has  often  been  re- 
peated in  their  presence.  Not  being 
amenable  for  perjury,  having  no 
knowledge  of  moral  responsibility, 
designing  and  wicked  people  may 
easily  use  them  to  further  intrigues  of 
their  own  without  fear  of  punishment 
for  subornation  of  perjury.  They  are 
clay  in  the  potter's  hand,  to  be  mould- 
ed, some  to  honor  and  some  to  dis- 
honor. Lacking  conscientiousness, 
they  repeat  with  phonographic  pre- 
cision the  things  that  they  have  been 
told  to  say,  be  they  true  or  false." 
State  v.  Michael,  37  W.  Va.  565,  569. 
Leading  questions  are  always  admissi- 
ble when  propounded  to  a  very  young 
witness  to  ascertain  his  intelligence, 
competency  and  understanding  of  an 
oath.  Hodge  v.  State,  26  Fla.  11.  See 
as  regards  the  discretionary  power  of 
the  court,  Underhill  on  Ev.,  §  386. 


§  200  THE    COMPETENCY    OP    WITNESSES.  255 

The  jury  may  consider  the  youth  fulness  and  intelligence  of 
the  witness. 

§  20G.  Incompetency  of  witnesses  caused  by  conviction  of 
infamous  crimes. — Witnesses  who  had  been  convicted  of 
murder,  arson,  perjury;  piracy,  forgery  or  other  great  and  in- 
famous crimes  were  by  the  common  law  regarded  as  incompe- 
tent to  testify. 

The  commission  of  a  crime  of  this  character  was  conclusively 
presumed  to  indicate  such  a  condition  of  moral  perversion  on 
the  part  of  the  person  who  had  been  convicted  that  his  abso- 
lute incapacity  to  tell  the  truth  could  safely  be  assumed. 

In  other  words,  the  probability  that  every  witness  who  was 
guilty  of  the  crimes  above  enumerated  would  perjure  himself 
if  he  were  permitted  to  testify  was  considered  to  be  so  great 
that  the  interests  of  truth  and  justice  imperatively  demanded 
his  exclusion  from  the  witness  stand.1 

The  common  law  required  that  the  witness  should  have 
been  convicted  of  some  infamous  crime,  and  the  early  writers 
usually  denominated  as  such  the  offenses  of  treason,  felony 
and  the  crimen  falsi.2  As  regards  treason,  and  that  very  large 
number  of  offenses  which,  in  England,  until  the  end  of  the 
eighteenth  century,  constituted  felony  at  common  law  or  by 
statute,  little  uncertainty  existed.  A  conviction  of  perjury,  of 
forgery  or  of  a  conspiracy  to  suppress  testimony  or  to  obstruct 
justice  was  always  sufficient  to  exclude  the  guilty  person  from 
the  witness  stand.3  Persons  convicted  of  the  crimen  falsi  were 
also  incompetent.  But  the  boundaries  of  this  offense  were 
somewhat  vaguely  defied  at  common  law.  Under  the  term 
crimen  falsi  many  minor  offenses  such  as  criminal  libel,  bar- 
ratry, maintenance  and  the  like  were  grouped.  These  crimes, 
while  not  amounting  to  felony  at  the  common  law,  indicate 
such  an  inherent  lack  of  respect  for  truth,  or  a  deliberate  in- 
tention to  interfere   with   and  obstruct  the   administration  of 


1 1  Greenl.  on  Ev.,  §372.  s  Rex  v.  Priddle,  2  Leach  C.  C.  496, 

8  6  Com.  Dig.,  353;  Co.  Lit.,  6  b. ;  2    497;  Rex  v.  Edwards,  4  T.  R.  440. 
Hale  P.  C.  277. 


256 


CRIMINAL    EVIDENCE. 


§207 


justice,  or  to  employ  the  machinery  of  the  law  for  improper 
purposes,  that  it  was  considered  safe  and  proper  to  exclude  the 
evidence  of  all  persons  convicted  of  having  perpetrated  them.1 


§  207.  The  pardon  of  the  convict,  when  restoring  compe- 
tency.— The  incompetency  to  testify  caused  by  a  conviction  of 
an  infamous  crime  was  always  removable  at  common  law  by  a 
full  and  unconditional  pardon  of  the  witness,2  by  the  reversal 
of  the  judgment  against  him,  and  by  a  suspension  of  sentence. 

But  a  pardon  will  not  restore  competency  if  the  statute  which 
prescribes  the  punishment  for  the  crime  also  expressly  pro- 
vides that  every  person  who  is  convicted  under  it  shall  forever 
be  incompetent  as  a  witness.3 

A  pardon  may  be  granted  for  the  sole  purpose  of  rendering 
a  convict  competent  to  testify.  And  a  pardon,  if  full  and  un- 
conditional, is  not  ineffectual  or  in  any  way  open  to  attack 
merely  because  it  was  granted  solely  to  enable  a  witness  to  tes- 
tify for  the  state  in  a  criminal  prosecution  pending  in  a  court 


12  Russ.  on  Crimes,  592;  1  Greenl. 
on  Ev.,  §  375.  In  Rex  v.  Priddle,  2 
Leach  C.  C.  496,  497,  the  court  said: 
"It  is  now  settled  that  it  is  the  in- 
famy of  the  crime  which  destroys  the 
competency,  and  not  the  nature  or 
mode  of  punishment."  Cf.  State  v. 
Green  (S.  Car.,  1897),  26  S.  E.  Rep.  234. 

2  Boyd  v.  United  States,  142  IT.  S. 
450,  453,  454,  citing  United  States  v. 
Wilson,  7  Pet.  150,  162 ;  Singleton  v. 
State  (Fla.,  1897),  21  So.  Rep.  21 ;  Ex 
parte  Wells,  18  How.  307, 315 ;  Ex  parte 
Garland,  4  Wall.  333,  380;  Martin  v. 
State,  21  Tex.  App.  1,  11;  United 
States  v.  Hall  (D.  C),  53  Fed.  R.  352, 
354;  State  v.  Blaisdell,  33  N.  H.  388 
Rivers  v.  State,  10  Tex.  App.  177,  182 
Hester  v.  Com.,  85  Pa.  St.  139,  155 
See,  also,  Com.  v.  Bush,  2  Duv.  (Ky.) 
264,  266;  State  v.  Baptiste,  26  La.  An. 
134,136,  2  Hawks  P.  C.  547.  A  witness 
may  be  restored  to  competency  even 
after  he  has  suffered  the  whole  pun- 


ishment for  his  crime.  United  States 
v.  Jones,  2  Wheeler  Cr.  Cas.  451 ;  State 
v.  Dodson,  16  S.  Car.  453,  461 ;  State 
v.  Foley,  15  Nev.  64,69;  People  v. 
Bowen,  43  Cal.  439,  442 ;  Hunnicutt  v. 
State,  18  Tex.  App.  498,  518. 

3  Rex  v.  Ford,  2  Salk.  690;  Blanc  v. 
Rodgers,  49  Cal.  15 ;  2  Russell  on 
Crimes,  595,  596.  In  some  states  it  is 
provided  that  no  person  convicted  of 
perjury  shall  be  rendered  competent 
by  a  pardon.  Virginia  Code,  3598; 
Florida,  Thompson  Digest,  344 ;  West 
Virginia  Code,  ch.  152.  The  incom- 
petency of  a  witness  because  of  con- 
viction of  crime  is  not  removed  by  a 
pardon  which  merely  remits  a  part  of 
the  penalty,  State  v.  Richardson,  18 
Ala.  109,  or  which  may  be  revoked  by 
the  pardoning  power  in  case  the  con- 
vict is  again  convicted.  McGee  v. 
State,  29  Tex.  App.  596.  Cf.  People 
v.  Pease,  3  John.  Ca.  (N.  Y.)  333. 


§208  THE   COMPETENCY    OF    WITNESSES.  2~>1 

which  is  under  the  jurisdiction  of  the  pardoning  power.1  An 
absolute  pardon  is  irrevocable  as  soon  as  it  is  delivered  and  ac- 
cepted by  the  grantee  or  his  agent.2  If,  however,  the  pardon 
is  conditional,  and  something  must  be  done  before  the  pardon 
shall  operate  to  restore  competency,  the  party  who  calls  the 
witness  will  be  required  to  show  that  the  condition  has  been 
performed.8 

§  208.  Mode  of  proving  pardon — Parol  evidence. — In  ac- 
cordance with  the  rule  that  the  courts  will  take  judicial  notice 
of  all  public  laws,  a  proclamation  or  statute  granting  a  general 
amnesty  need  not  be  proved,4  though  an  executive  pardon  of 
any  particular  individual,  being  in  its  nature  a  private  deed  or 
release,  must  be  proved.  This  must  be  done  by  the  produc- 
tion in  court  of  the  instrument  itself  or  a  certified  or  exemplified 
copy.5  A  pardon  is  valid,  though  it  incorrectly  state  the  date 
of  the  conviction,  or  even  state  an  impossible  date,  if  it  was  in- 
tended to  cover  and  does  cover  the  offense.6  Parol  evidence  is 
admissible  to  identify  the  person  and  the  particular  conviction 
of  crime  named  in  the  pardon.7 

The  incompetency  resulting  from  a  conviction  of  crime  is  no 
part  of  the  punishment.  Nor  does  a  conviction  disqualify  the 
convicted  person  as  a  witness  beyond  the  geographical  limits  of 
that  state  wherein  judgment  was  rendered.  Hence  a  person 
convicted  in  one  state  is  not  incompetent  to  testify  in  the 
courts  of  another  state,  unless  the  statutes  of  the  latter  declare 
that  persons  convicted  of  crime  are  not  competent.8 

xBoyd  v.  United  States,  142  U.  S.  5  Hunnicutt  v.  State,  18  Tex.  App. 

450,  453,  454.  498;  United  States  v.  Wilson,  7  Pet. 

'2Rosson  v.  State,  23  Tex.  App.  287,  (U.  S.)  150,  161 ;  State  v.  Baptiste,  26 

289;  6  Or.  L.  Mag.  480.  La.  An.  134,  137;  Underbill  on  Ev., 

3  Waring  v.  United  States,  7  Ct.  CI.  §§  142b,  320,  citing  cases. 

501;  State  v.  Keith,  63  N.  Car.  140,  61  Bisb.  Cr.  L.,  §  906;  Martin  v. 
142.  State,  21  Tex.  App.  1,  11;  Hnnnieut 

4  United  States  v.  Hall,  53  Fed.  Rep.     v.  State,  18  Tex.  App.  498,  521. 

352,  354;  United  States  v.'  Wilson,  7  7  Martin  c.  State,  21  Tex.  App.  1,  11. 

Pet.  150,  162;  State  v.  Blalock,  Phil.  8  Logan  ».  United  Slates,  144  U.  S. 

(N.  Car.)  242;  State  v.  Keith,  63  N.  263,  303,  citing  Wisconsin  v.  Pelican 

Car.  140,  143.    On  judicial  notice,  see  Ins.  Co  ,  127  V .  8.265;  Com.  v.  Green, 

Underhill  on  Ev.,  §§240,  242.  17  Mass.  515;  Sims  v.  Sims,  75  N.  Y. 
17— Ck.  Ev. 


258  CRIMINAL  EVIDENCE.  §  209 

§  209.  Statutory  regulations  removing  the  incompetency  of 
persons  convicted  of  crime. — The  common  law  incompetency 
of  persons  convicted  of  crime  to  testify  as  witnesses  is  general- 
ly abolished  by  statute  in  this  country.  In  many  of  the  states 
the  fact  that  the  witness  has  been  convicted  of  any  crime,  how- 
ever his  offense  may  show  or  imply  an  absolute  lack  of  respect 
for  the  truth,  is  not  a  valid  objection  to  his  competency.  But 
it  is  always  permissible  to  prove  the  fact  of  his  conviction  by 
proper  evidence,  that  the  jury  may  be  enabled  the  better  to  esti- 
mate his  moral  character,  as  a  man,  and  the  credibility  of  his 
evidence.1  A  conviction  of  some  crimes,  as  perjury,  the  com- 
mission of  which  involves  an  utter  disregard  for  the  obligation 
of  an  oath  is  still,  in  some  states,  an  insuperable  objection  to 
the  competency  of  a  witness.2  In  a  few  of  the  states  a  witness 
who  has  been  convicted  of  a  capital  crime  or  of  certain  felon- 
ies which  involve  or  indicate  great  moral  degeneration,  such, 
for  example,  as  burglary,  forgery,  rape,  arson,  perjury,  biga- 
my, sodomy,  etc.,  is  by  statute  absolutely  incompetent  to  tes- 
tify.3 These  statutes  are  to  be  construed  with  strictness.  The 
terms,  descriptive  of  crimes,  mentioned  in  them,  will  be  pre- 
sumed to  have  been  used  in  the   sense  they  possessed  at  com- 

466;  National  Trust  Co.  v.  Gleason,  souri  (R.  S.  1889,  §  8925),  Wisconsin 

77  N.  Y.  400,  410;   Contra,  Pitner  v.  (R.  S.  1878,  §  4073),  Delaware  (Laws, 

State,  23  Tex.  App.  366.  vol.  17,   ch.  598,  §  3),  Kansas  (Gen. 

JThis   is  the  statute   law   in    New  Stat.  1889,  §  4414),  Nebraska  (Code,  p. 

York   (Code  Civ.   Pro.   832),    Rhode  672,   §  330),  Nevada  (Gen.   St.   1885, 

Island  (Pub.  St.,  ch.  214,  §  38),  Utah  §§  3399,   377),   Montana  (Code    Civ. 

(Compiled  Laws,  1888,  vol.  2,  tit.  10,  Pro.    647)    and   Oregon    (Hill's    An. 

ch.  2),  Colorado  (Gen.  Laws,  §  3647),  Laws  1887,  ch.  8,  title  3,  §  710). 

California  (Civil  Code,  §  1879),  Con-  2This  is  the  case  in  Alabama  (Code 

necticut  (Gen.  Stat.,  §  1098),  Indiana  1886,  §  2766),  Florida  (Laws,  ch.  202, 

(R.  S.  1894),  Georgia  (Code,  §  3854),  §  6),  Maryland  (Pub.  Gen.  Laws,  art. 

Michigan  (Howell's  An.  Stat.,  §§  7543,  35,  §  1),  Mississippi  (Rev.  Code,  1880, 

7544),    Illinois    (R.    S.,  ch.  51,   §   1),  §  1600),  Pennsylvania  (Laws  1887,  ch. 

Massachusetts    (Pub.    Stat.,    ch.    169,  89,  §  2),  Vermont  (R.  S.  1880,  §  1008), 

§  19),    Minnesota   (Statutes,  §  5095),  and  Washington  (Code,  vol.  2,  §  1647. 

New   Hampshire  (Pub.  St.  1891,  ch.  Cf.  supra,  §  206. 

223,  §26),  Ohio  (R.  S.  1886,  §§  5240,  3  Arkansas  (Code,  §  2859),  Tennes- 

7284),  Iowa  (Rev.  Code  1886,  §  3637),  see   (Code,  §  4562),  Texas  (Code  Cr. 

Maine  (R.  S.  1883,  ch.  82,  §  105),  Mis-  Pro.  730) ,  Virginia  (Code  1887,  §3898). 


§  210  THE    COMPETENCY    OK    WITNESSES.  259 

mon  law.1     Nor  should  any  of  these  statutes  be  construed  to 
prevent  the  accused  from  testifying  in  his  own  hehalf.2 

§  210.  Statutes  construed. — The  authorities  are  divided  up- 
on the  question  whether,  under  the  existing  statutes,  the  con- 
viction of  a  witness  for  a  crime  which  would  not  have  rendered 
him  incompetent  at  common  law  can  be  shown  for  the  sole 
purpose  of  impeaching  his  credibility.  A  great  deal  depends 
upon  the  express  terms  of  the  statute.  On  the  one  hand  it  has 
been  held  that  the  witness  may  be  discredited  by  showing  him 
to  have  been  guilty  of  a  misdemeanor,3  though  of  course,  if  a 
statute  provides  expressly  that  the  witness  may  be  interrogated 
as  regards  his  "conviction  of  felony,"  proof  of  a  conviction  of 
misdemeanor  is  inadmissible.*  But  the  current  of  the  decis- 
ions supports  the  more  logical  doctrine  that  a  conviction  of 
those  infamous  crimes  only  can  be  shown  which  would  have 
destroyed  his  competency  at  the  common  law.5  Where  a  stat- 
ute removes  the  common  law  disability  arising  from  a  convic- 
tion of  infamous  crime,  the  confession  of  a  witness  that  he  has 
perjured  himself  in  the  same  matter  as  that  in  which  he  is  now 
testifying  constitutes  no  objection  to  his  competency.6 

1  Williams  v.  Dickenson,  28  Fla.  90 ;  tion  of  writings  are  discussed  in  TJn- 

Com.  v.  Minor,  89  Ky.  555,  560.     It  derhill  on  Ev.,  §  206. 

seems  that  a  person  convicted  of  fel-  3  State  v.  Pfefferle,  36  Kan.  90,95; 

ony  is  competent,   provided  he  has  Com.   v.  Ford,  146  Mass.    131,   133; 

not  been  sentenced.     Hurley  v.  State  Com.  v.  Hall,  4  Allen   (Mass.)  305; 

(Tex.,    1896),    33    S.   W.    Eep.    354;  Helm  v.  State,  67  Miss.  562,  573. 

Evans  v.  State  (Tex. ,1896),  34  S.  W.  4  Hanners  v.  McClelland,  74  Iowa 

Rep.   285 ;    Robinson  v.  State  (Tex.,  318,  322. 

1896),  35  S.W.  Rep.  651 ;  State  v.  Dal-  5  Bennett  v.  State,  24  Tex.  App.  73; 

ton   (R.   I.  1897),  37  Atl.  Rep.  673;  Bartholomew  v.  People,  104  111.  601; 

Underwood  v.  State  (Tex.  1897J,  41  S.  Coble  v.  State,  31  Ohio  St.  100;  Com. 

W.  Rep.  618.  v.  Dame,  8  Cush.  384 ;  People  v.  Caro- 

2 The  interpretation  and  construe-  Ian,  71  Cal.  195. 

6  People  v.  O'Neil,  109  N.  Y.  251. 


CHAPTER  XVIII. 


THE    EXAMINATION    OF    WITNESSES. 


§211. 

Direct  examination — Leading 

§222. 

When  answers  to  questions  in- 

questions. 

volving    collateral     matters 

212. 

When  leading  questions  may 

asked  in  cross-examination 

be  asked  on  the  direct  exami- 

may be  contradicted — Hos- 

nation. 

tility  or  friendship  towards 

213. 

Forgetful  witness  may  be  asked 

the  accused. 

leading  questions. 

223. 

Re-direct  examination. 

214. 

Questions  put  to  the  witness 

224. 

Recalling  witnesses. 

by  the  court. 

225. 

Exclusion    and  separation  of 

215. 

Judicial  remarks  upon  the  de- 

witnessess. 

meanor  or    credibility  of  a 

226. 

Refusal  to  testify. 

witness  during  his  examina- 

227. 

Interpreting   the    language  of 

tion. 

the  witness. 

216. 

Answers  must  be  responsive. 

228. 

Improper  reception  of  evidence 

217. 

Refreshing  the  memory  of  a 

by  the  jurors. 

forgetful  witness  by  memo- 

229. 

View  by  the    jurors — Discre- 

randum. 

tionary  power  of  the  court. 

218. 

Character  of  the  memorandum 

230. 

Purpose  of  the  view  is  to  afford 

employed     to     refresh    the 

evidence. 

memory. 

231. 

The  right  of  the  accused  to  be 

219. 

Purpose    and    importance    of 

present  during  the  taking  of 

cross-examination . 

the  view. 

220. 

When  right  to  cross-examina- 

232. 

Presence  of  the  accused  while 

tion  is  lost — Cross-examina- 

taking testimony. 

tion     confined     to     matters 

233. 

Experiments    in  and    out    of 

brought  out  on  direct. 

court. 

221. 

Cross-examination  to  test  cred- 
ibility. 

§  211.  Direct  examination — Leading  questions. — The  wit- 
ness, after  being  sworn,  is  asked  his  name  and  address,  that 
his  identity  may  be  ascertained  or  confirmed.  He  may  then  be 
interrogated  as  to  facts  within  his  knowledge  relevant  to  the 
guilt  or  innocence  of  the  accused. 

It  is  not  usually  allowable,  on   the  direct  examination,  to 

(260) 


§  212  THE    EXAMINATION    OF    WITNESSES.  261 

ask  leading  questions,  i.  e.,  questions  which,  by  their  form  or 
character,  "suggest  to  the  witness  the  answer  which  the  party 
desires  and  expects  him  to  make,  and  Leads  him  to  make  it;"1 
as,  for  example,  questions  which  are  a  Btatemenl  of  fact,  and 
suggest  that  the  witness  is  to  deny  or  affirm  its  truth  by  an- 
swering "yes"  or  "no."  Somewhat  Bimilar  and  equally  in- 
admissible are  questions  which  assume  the  truth  of  facts  which 
are  in  issue,  or  which  are  material,  which  have  not  been 
proved,  or  certain  answers  to  have  been  given  to  prior  ques- 
tions, when  such  answers  have  not  been  given.2 

Except  in  the  examination  of  experts,  it  is  not  permissible 
on  the  direct  examination  to  question  a  witness  upon  matters 
not  within  his  personal  knowledge,  or  to  endeavor,  by  assum- 
ing questions,  to  elicit  his  opinion  on  or  inference  from  any 
matters  of  fact.  Sometimes,  however,  leading  questions  may 
be  asked  on  the  examination-in-chief.  The  matter  is  largely 
in  the  control  of  the  judge,  who  may  and  should  exercise  a 
sound  discretion.  The  general  rule  should  not  be  departed 
from  without  good  reason.  Least  of  all  should  the  state  be  al- 
lowed to  make  out  its  case  by  putting  evidence  in  the  mouths 
of  its  witnesses.  If  the  witness  is  intelligent,  he  must  be 
asked  general  questions  to  save  time  and  facilitate  justice;  and 
where  leading  questions  on  vital  and  material  points  are  per- 
mitted to  be  put  by  the  state,  and  no  reason  or  necessity  ap- 
pears for  them,  the  judicial  discretion  will  be  deemed  to  have 
been  abused  and  a  new  trial  may  be  ordered  for  this  alone.8 

§  212.  When  leading  questions  may  be  asked  on  the  direct 
examination. — The  general  rule  is  subject  to  some  important 

Jl  Greenl.  on  Ev.,  §434.  3  Coon   v.   People,  99  111.  368,  370; 

2  State  v.  Johnson,  29  La.  An.  717;  Cannon  v.  People,  141  111.  270,  278,  30 

Hays  v.  State  (Tex.,  1893),  20  S.  W.  N.  E.  Rep.  1027;  Brassell  v.  State,  91 

Rep.    361;    Chambers    v.    People,    4  Ala.  45,  47;  McClain  v.  Com.,  110  Pa. 

Scam.  (111.)  351;  State  v.    Duffy,   57  St,  263;  Com.  v.  Chaney,  148  Mass.  6, 

Conn.  525,  527;   Bostic  v.   State,   94  8;  Harvey  v.   State   (Tex.,  1896),  34 

Ala.  45,  49;  People  v.  Lange,  90  Mich.  S.  W.  Rep.  623;  App  v.  State,  90  In. I. 

454;  People  v.  Fong  Ah  Sing,  70  Cal.  73,  75;  Anderson  v.  State,  104  Ala.  83; 

8,  12;  People  ».  Brow,  90  Hun  509;  Barnes  v.  State  (Tex.,  1897),  39  S.  W. 

and  see  Underbill  on  Ev.,  p.  470.  Rep.  684. 


262 


CRIMINAL    EVIDENCE. 


§213 


exceptions.  An  exception  is  recognized  in  the  case  of  an  un- 
willing witness,  or  one  who,  on  the  direct  examination,  is 
hostile  to  the  party  calling  him  and  refuses  to  answer  fully,  or 
colors  his  testimony  to  favor  his  opponent,  or  attempts  to  con- 
ceal what  he  knows  by  ambiguous  language.1 

§  213.   Forgetful  witnesses  may  be  asked  leading  questions. — 

Leading  questions  may,  in  the  discretion  of  the  court,  be  put 
to  a  forgetful  witness,  or  to  one  who  simulates  forgetfulness. 
And  if,  by  reason  of  the  stupidity  or  ignorance  of  the  witness, 
real  or  assumed,  or  his  inclination  to  prevaricate,  the  general 
questions  which  have  been  put  fail  to  bring  specific  answers, 
leading  questions  may  lawfully  be  propounded.2  Leading 
questions  are  often  allowed  in  the  examination  of  witnesses  of 
tender  years  who  may  be  incapable,  because  of  inexperience 
and  the  embarrassment  attendant  on  a  public  judicial  exami- 
nation, of  framing  their  knowledge  in  intelligible  language.3 


People  v.  Caldwell  (Mich.,  1896), 
65  N.  W.  Rep.  213;  Fitzpatrick  v. 
State  (Tex.,  1897),  38  S.  W.  Rep.  806; 
People  v.  Gillespie  (Mich.,  1897),  69 
N.  W.  Rep.  490;  Schuster  v.  State,  80 
Wis.  107,  117;  State  v.  Tall,  43  Minn. 
273 ;  State  v.  Benner,  64  Me.  267,  271- 
273,  279,  280 ;  Underhill  on  Ev.,  §  335,  p. 
474.  In  Moody  v.  Rowell,  17  Pick.  490, 
498,  the  court  said :  '  'The  court  have  no 
doubt  that  it  is  within  the  discretion 
of  a  judge,  under  particular  circum- 
stances, to  permit  a  leading  question 
to  be  put  to  one's  own  witness ;  as 
where  he  is  manifestly  reluctant  and 
hostile  to  the  interest  of  the  party 
calling  him,  or  where  he  has  ex- 
hausted his  memory  without  stating 
the  particulars  required,  where  it  is  a 
proper  name,  or  other  fact  which 
can  not  be  significantly  pointed  to  by 
a  general  inquiry,  or  where  the  wit- 
ness is  a  child  of  tender  years  whose 
attention  can  be  called  to  the  matter 
required  only  by  a  pointed  or  leading 
question.     So  a  judge  may,  in  his  dis- 


cretion, prohibit  certain  leading  ques- 
tions from  being  put  to  an  adversary's 
witness,  where  the  witness  shows  a 
strong  interest  or  bias  in  favor  of  the 
cross-examining  party,  and  needs 
only  an  intimation  to  say  whatever  is 
most  favorable  to  that  party.  The 
witness  may  have  personally  con- 
cealed such  bias  in  favor  of  one  party 
to  induce  the  other  to  call  him  and 
make  him  his  witness,  or  the  party 
calling  him  may  be  compelled  to  do 
so  to  prove  some  single  fact  necessary 
to  his  case.  This  discretionary  power 
to  vary  the  general  rule  is  to  be  ex- 
ercised only  so  far  as  the  purposes  of 
justice  plainly  require  it,  and  is  to 
be  regulated  by  the  circumstances  of 
each  case." 

2  Coon  v.  People,  99  111.  368,  369; 
Mann^.  State,  23  Fla.  610,613;  Na- 
varro v.  State,  24  Tex.  App.  378;  Cas- 
sem  v.  Galvin,  158111.  30. 

3  Hodge  v.  State,  26  Fla.  11,  16;  Pol- 
son  v.  State,  137  Ind.  519,  523,  35  N. 
E.   Rep.  907;  Proper  v.  State  (Wis., 


§213 


THE    EXAMINATION    OF    WITNESSE8. 


263 


But  this  exception  is  not  universally  recognized,  and  it  would 
seem  that  the  tender  age  of  a  witness  furnishes  a  reason  why 
leading  questions  should  not  be  asked,  because  of  the  ease  with 
which  young  persons  and  children  may  be  misled  thereby.1 

Leading  questions  may  also  be  put  to  a  witness  whose  mem- 
ory, while  clear  and  strong,  as  regards  the  main  facts  of  a 
complicated  transaction,  is  weak  and  indistinct  as  to  minor 
accompanying  facts,  such  as  places  or  dates.2  So,  to  refresh 
the  memory  of  one's  own  witness,  counsel  may  ask  if  the  wit- 
ness did  nut  at  some  prior  date  state  facts  which  maybe  incon- 
sistent with  his  present  testimony.3  If  the  memory  of  a  wit- 
ness is  faint,  he  may  be  plied  with  leading  questions  on  unim- 
portant and  irrelevant,  but  suggestive  facts.  He  may  be 
asked  what  his  uniform  habit  or  routine  of  acting  was  in  con- 
nection with  certain  transactions,  if  the  evidence  of  the  unim- 
portant fact  or  routine  suggests  to  him  a  relevant  but  forgot- 
ten fact.*  In  the  introductory  portion  of  the  direct  examina- 
tion, leading  questions  are  allowed.  Thus  counsel  are 
permitted,  instead  of  asking  what  was  said,  to  ask  a  witness 
whether  specific  statements  were  made  in  his  hearing,  for  the 
purpose  of  contradicting  a  witness  who  had  testified  that  they 
were  not  made.5 


1893),  53  N.  W.  Rep.  1035;  Paschal  v. 
State,  89  Ga.  303 ;  ante,  §  205. 
^oon  v.  People,  99  111.  368,  369. 

2  In  a  prosecution  for  rape  or  seduc- 
tion, or  for  an  indecent  assault,  where 
it  is  difficult  to  induce  the  female, 
who  is  usualty  the  principal  witness 
for  the  state,  to  relate  the  details  of 
the  crime,  because  of  the  natural 
timidity  and  female  modesty,  which 
prompt  her  to  remain  silent  as  regards 
these  indelicate  details,  proof  of  which 
is  necessary  to  convict,  leading  ques- 
tions are  very  properly  put  to  her. 
State  v.  Bauerkeniper  (Iowa,  1896), 
64  N.  W.  Rep.  609;  Callison  v.  State 
(Tex.,  1897),  39  S.  W.  Rep.  300. 

3  Schusters.  State,  80  Wis.  107,  117; 
State  v.  Cummins,  76  Iowa  133,  136; 


People  v.  Durrant  (Cal.,  1897),  48  Pac. 
Rep.  75. 

4Prentis  v.  Bates,  88  Mich.  567; 
People  v.  Sherman,  133  N.  Y.  :U9. 

5Shultz  v.  State,  5  Tex.  App.  390; 
Cannon  v.  People,  141  111.  270.  See 
Underbill  on  Ev.,p.475,  §335,  note 3. 
If  a  question  calls  for  evidence  which 
may  or  may  not  be  relevant,  and  some- 
times even  when  no  question  has  been 
asked,  and  the  witness  has  neither 
been  sworn  nor  examined,  the  court 
may,  in  its  discretion,  on  application 
by  the  other  party,  require  counsel 
examining  to  disclose  the  substance 
of  what  it  is  proposed  to  prove.  Peo- 
ple v.  White,  14  Wend.  (N.  Y.)  Ill; 
State  v.  Small,  26  Kan.  209;  Wood  v. 
State,  92  Ind.  269. 


264  CRIMINAL  EVIDENCE.  §  214 

§214.  Questions  put  to  the  witness  by  the  court. — The  in- 
terests of  public  justice  and  the  punishment  and  prevention  of 
crime  on  the  one  hand,  and  principles  of  fairness  toward  the 
prisoner  on  the  other,  demand  that  the  presiding  judge  should 
not  entertain,  or,  at  least,  should  not  manifest,  any  partiality 
for  or  against  the  accused  during  the  examination  of  the  wit- 
nesses. 

It  is  necessary  here  to  distinguish  carefully  between  the 
competency  of  evidence  and  its  credibility.  The  admissibility 
of  evidence  is  usually  a  judicial  question  with  which  the  jury 
has  no  concern.1  It  is  the  right,  therefore,  of  the  judge  in  a 
criminal  trial  to  determine  all  preliminary  questions  bearing 
on  the  competency  of  evidence  or  of  witnesses,  and  to  enable 
him  to  do  this  he  may  have  to  question  the  witness.  And  the 
court,  in  ruling  on  the  competency  of  evidence,  may  state  the 
reasons  and  grounds  for  offering2  and  receiving  or  rejecting  it, 
or  may  declare  its  probable  effect  if  it  had  been  received, 
if  no  language  is  employed  which  will  improperly  influence  the 
minds  of  the  jurors  against  the  prisoner.3  With  these  qualifica- 
tions no  rule  of  law  exists  which  limits  the  power  of  a  judge 
in  a  criminal  trial  to  interrogate  a  witness  during  his  exam- 
ination. He  may  ask  any  question  which  either  the  state  or 
the  accused  had  a  right  to  ask,  or  which  it  was  their  duty  to 
ask,  but  which  has  been  omitted,  if  the  answer  may  be  rele- 
vant. Where  anything  material  has  been  omitted,  it  is  the 
duty  of  the  court  to  bring  it  out.4  But  the  court  should  be 
very  careful  to  let  fall  no  remarks,  and  to  put  no  questions 
which  assume  the  prisoner's  guilt,  for  experience  teaches  all 
persons  that  jurors,  particularly  in  evenly  balanced  cases,  are 
extremely  prone  to  be  influenced  by  such  judicial  intimations, 
and  to  defer  to  them  in  rendering  their  verdict.5    But  no  remark 

1  Underbill  on  Ev.,  §§  11-13.  De  Ford  v.  Painter,  3  Okl.  80,  41  Pac. 

2  Armstrong  v.  State,  14  Ind.  App.  Eep.  96;    Bowden  v.  Achor,   95  Ga. 
566,  43  N.  E.  Rep.  142.  243;  Epps  v.   State,  19  Ga.  102,  110; 

3  State  v.  Milling,  35  S.  Car.  16,  25, 14  State  v.  Lee,  80  N.  Car.  483. 

S.  E.  Rep.  284 ;  Hodge  v.  State,  26  Fla.        5  People  ^.Williams,  17  Cal.  142,  146. 
11,  16,  7  So.  Rep.  593.  Cf.  contra,  State  v.  Milling,  35  S.  Car. 

4Colee  v.  State,  75  Ind.  511,  514;     16,25. 


§215 


THK    KXAM  I  NATION    OF    WITNESSES. 


261 


by  the  judge  made  during  the  examination  of  a  witness  can  be 
urged  as  ground  for  a  new  trial  which  refers  solely  to  compe- 
tency, to  the  relevancy  of  testimony,  or  to  the  reason  for  its 
exclusion  or  admission.1  The  active  participation  of  the  court 
in  the  examination  of  a  witness,  even  to  suggesting  the  proper 
form  of  a  question,  is  not  reversible  error.' 

The  witness  may  always  be  asked  by  the  court  whether  he 
understands  a  question  which  has  been  put  to  him,8  and  the 
court  may,  in  order  to  facilitate  and  expedite  the  administra- 
tion of  justice,  peremptorily  check  or  silence  the  irrelevant 
evidence  of  a  voluble  or  abusive  witness,4  or  interpose  sua 
sponte  to  stop  the  prolonged  and  unnecessary  examination  of 
a  witness,5  to  exclude  incompetent  evidence,  particularly  where 
the  accused  has  no  counsel,  or  he  is  a  child  of  tender  years.6 

Sometimes  jurors  are  permitted  to  interrogate  a  witness  and 
his  answers,  if  relevant,  are  not  incompetent  because  thus  in- 
formally obtained.  A  lengthy  examination  by  a  juror,  during 
which  his  mental  attitude  or  bias  towards  the  accused,  or  to- 
wards the  issue  is  exhibited,  should  not  be  permitted  or  encour- 
aged.7 

§  215.  Judicial  remarks  upon  the  demeanor  or  credibility  of 
a  witness  during  his  examination. — The  credibility  and  weight 
of  evidence  are  for  the  jury  exclusively.    All  judicial  observa- 


1  State  v.  Young,  105  Mo.  634;  Pat- 
terson v.  State,  86  Ga.  70,  73;  Lewis  v. 
State,  90  Ga.  95;  Com.  v.  Ward,  157 
Mass.  482,  484,  485;  Arnold  v.  State, 
81  Wis.  278,  280 ;  Butler  v.  State,  91 
Ga.  161,  16  S.  E.  Rep.  984;  State  v. 
Turner,  36  S.  Car.  534,  542;  State  v. 
Barnes,  48  La.  An.  460,  19  So.  Rep. 
251 ;  State  v.  HaywaTd,  62  Minn.  474, 
65  N.  W.  Rep.  63. 

2  Hodge  v.  State,  26  Fla.  11,  7  So. 
Rep.  593;  Sanders  v.  Bagwell,  37  S. 
Car.  145,  15  S.  E.  Rep.  714. 

3  State  v.  Mathews,  98  Mo.  125,  129. 

4  Robinson  v.  State,  82  Ga.  535,  547; 
Bourden  v.  Bailes,  101  N.  Car.  612. 

5  People  v.  Turcott,  65  Cal.  126 ;  State 


v.  Southern,   48  La.  An.  628,  19  So. 
Rep.  668. 

6  McClure  v.  Com.,  81  Ky.  448,  450. 

7  The  accused  is  sometimes  allowed 
by  statute  to  make  a  personal  state- 
ment of  his  defense  under  oath.  He 
is  not  a  witness  in  such  a  case,  and 
can  not  be  examined  or  cross-exam- 
ined by  jurors  or  counsel.  The  court 
must  protect  him  sua  sponte  from  the 
questioning  or  interference  of  coun- 
sel, or  of  others,  and  its  neglect  to  do 
this,  if  objection  is  promptly  made,  is 
ground  for  reversing  a  conviction. 
Bond  v.  State,  21  Fla.  738;  Miller  v. 
State,  15  Fla.  575;  Hawkins  v.  State, 
29  Fla.  554,  557. 


266  CRIMINAL    EVIDENCE.  §  216 

tions  or  remarks  upon  the  personal  character  of  a  witness,  the 
nature,  credibility  or  weight  of  his  evidence,  made  during  his 
examination,  are  improper,  and  furnish  grounds  for  objection.1 
It  is  immaterial  that  the  judicial  observations  were  inadvert- 
ently made  if  the  accused  was  substantially  prejudiced,2  though 
it  seems  that  the  error  may  be  cured  by  a  prompt  withdrawal 
or  retraction  of  the  objectionable  words,3  or  by  an  instruction 
to  disregard  them.4 

§  216.  Answers  must  be  responsive. — The  questions  put 
should  be  neither  vague  nor  ambiguous.5  So  the  answers 
should  be  responsive,  stating  all  facts  called  for,  and  no  more, 
and  generally  without  any  expression  of  opinions,  inferences 
or  conjectures.6  If  the  answer  given  is  so  irresponsive  that  it 
wholly  or  in  part  fails  to  convey  all  the  facts  which  were  re- 
quired, or  if  it  states  facts  or  opinions  not  required,  it  may  be 
stricken  out  on  motion  as  far  as  it  is  not  responsive,  and  the 
refusal  of  this  motion  when  seasonable  objection  is  made  by 
the  accused  is  reversible  error.7  The  court  may  always  in  its 
discretion  direct  a  witness  to  answer  a  relevant  question  re- 
sponsively   if  he  persists  in  replying  evasively,8  and  should 

1  State  v.  Philpot  (Iowa,  1896),  66  30  N.  E.  Rep.  306;  Ryan  v.  State,  83 
N.  W.  Rep.  730;  Sharp  v.  State,  51  Wis.  486;  Com.  v.  Ward,  157  Mass. 
Ark.  147,  155,  156-158;  State  v.  Ray-  482,  484,  485;  State  v.  Black,  42  La. 
mond,  53  N.  J.  L.  260,  262;    Peoples.  An.  861. 

Wood,  126  N.  Y.  249,  260,  268 ;  Shep-  *  People  v.  Northey,  77  Cal.  618,  630 ; 

herd  v.  State,  31  Neb.  389;  State  v.  Ja-  Vann  v.  State,  83  Ga.  44. 

cobs,  106  N.  Car.  695,  696;   Campbell  5  Hill  v.  State,  91  Tenn.  521,  19  S. 

v.  State,  30  Tex.  App.  645;  People  v.  W.  Rep.  674;  Mann  v.  State,  23  Fla. 

Nino,  149  N.  Y.  317;   State  v.  Lucas,  610. 

24  Ore.  168,    174,  33  Pac.  Rep.    538;  6  People  v.   Smith  (Mich.,  1896),  64 

Peoples.  Hull,  86  Mich.  449;  Bone  v.  N.  W.  Rep.  200.     See  Underhill  on 

State,  86  Ga.  108,  117.     A  remark  by  Ev.,  p.  476,  note  2. 

the  court  that  "witness  has  contra-  7  Chicago,  etc.,  Co.  v.  Woodward, 

dieted  himself  several  times,"  is  very  47  Kan.  191. 

objectionable.     People  v.  Willard,  92  8  State  v.  Farley,  87  Iowa  22,  24,  53 

Cal.  482,  489,  490.  N.  W.  Rep.  1089.  Whether  the  answer 

2  Garner  v.  State,  28  Fla.  113,  142.  is  or  is  not  responsive  is  for  the  court 

3  Johnson  v.  State,  94  Ala.  35,  41;  alone. 
Reinhold  v.  State,  130  Ind.  467,  472, 


§  li  1  7  THE    EXAMINATION    OP    WITNESSES.  267 

promptly  rebuke  a  witness  who  persists  in  stating  his  opinion 
as  to  the  guilt  of  the  prisoner.1 

§  217.   Refreshing  the  memory  of  a  forgetful  witness  by 

memorandum. — A  witness  gem  rally  will  be  permitted  to  speak 
of  those  facts,  only,  which  are  within  his  personal  knowledge 
and  recollection.  He  may  aid  or  refresh  his  memory,  if  it  is 
weak  or  at  fault,  by  consulting  on  the  witness  stand  a  writing  or 
memorandum,  whether  made  by  himself  or  by  another  person, 
if,  after  examining  it  and  because  of  what  he  has  read  therein, 
he  is  able  to  testify  of  his  own  recollection  thus  renewed  and 
revived.2  The  memorandum  is  not  generally,  nor  need  it  ever 
be,  competent  evidence.  Hence  the  question  of  its  relevancy,  or 
materiality,  should  not  be  considered  ;s  nor  need  it  be  read  as 
evidence  to  the  jury,4  though  it  seems  that  they  may  examine 
it  to  see  if  the  recollection  of  the  witness  could  have  been  re- 
freshed.5 

A  witness  in  a  criminal  trial  will  be  allowed  to  consult  a 
writing  to  refresh  his  memory  under  the  following  circum- 
stances :  First.  If  he,  while  retaining  no  independent  recol- 
lection of  the  facts  transcribed,  remembers  having  made  the 
memorandum,  or,  when  it  was  made  by  another,  if  he  remem- 
bers having  seen  it,  and  that,  when  he  saw  it,  he  knew  it  was 
correct.6 

1  A  witness,  in  his  excitement,  ac-  writing.  State  v.  Baldwin,  36  Kan. 
cused  the  prisoner  of  being  guilty  of    1,  15. 

the  murder  for  which  he  was  being  s  Flood  v.   Mitchell,  68  N.  Y.  507; 

tried.    The  court  need  not  stop  the  Pickard  v.  Bryant,  92  Mich.  430. 

trial  if  the  jury  are  properly  cautioned  4  Raynar  o.  Norton,  31  Mich.  210. 

to  disregard  the  accusation.     Com.  v.  5Com.  v.  Haley,  L3  Allen  587. 

Gilbert,  165  Mass.  45,42  N.  E.  Rep.  6State  v.  Baldwin,  36  Kan.   1,  15; 

346.  State  v.  Colwell,  3  R.  1. 182 ;  Woodruff 

2  Jenkins  v.  State,  31  Fla.  196, 200, 201,  v.  State,  61  Ark.  157,  32  S.  W.  Rep. 
12  So.  Rep.  677;  Kingory  v.  United  102;  Owens  v.  State,  67  Md.  307; 
States,  44  Fed.  Rep.  669,  670;  Com.  v.  Baum  v.  Reay,  96  Cal.  462,  465 ;  Hart- 
Clancy,  154  Mass.  128.  See  civil  cases,  ley  v.  Cataract,  etc.,  Co.,  64  Hun  634, 
Underhill  on  Ev.,  §  337.  The  writing  19  N.  V.  Supp.  121  ;  Card  v.  Foot,  56 
is  to  aid  the  memory.  If  the  witness  Conn.  369.  See  Underhill  on  Ev.,  p. 
has  independent  knowle.lge  of  the  47S.  In  Dugan  o.  Mahoney,  11  Allen 
facts,   it  is   not  proper  to   inspect  a  (Mass.)   572,  the  court  said:    "It  is 


208  CRIMINAL  EVIDENCE.  §  218 

The  other  class  of  cases  includes  writings  which  the  witness 
does  not  remember  having  seen  before,  and  of  whose  contents 
he  has  no  present  recollection,  but,  being  able  to  identify  the 
hand- writing  as  his  own  or  as  that  of  some  other  person,  and 
knowing  it  to  be  genuine,  he  is  able  on  consulting  the  writing, 
and  because  of  its  aid  and  his  confidence  in  its  genuineness,  to 
swear  independently,  and  of  his  own  knowledge,  to  the  facts. 
Suppose,  for  example,  a  subscribing  witness  recognizes  his 
signature  to  an  attestation  clause  of  a  will.  His  memory  re- 
freshed, he  may  be  able  to  testify  to  the  facts  of  acknowledg- 
ment or  publication  and  subscription  by  the  testator  and  to 
other  accompanying  circumstances,  though  he  may  have  no 
independent  memory  thereof.  In  regard  to  the  first  class  of 
writings,  it  is  clear  that,  under  certain  circumstances,  they  are 
admissible  as  independent  evidence  forming  a  part  of  the  res 
gestae.  What  the  requirements  are,  which  must  be  fulfilled  be- 
fore declarations  will  be  receivable  as  a  part  of  the  res  gestae,  is 
fully  explained  elsewhere. 

§  218.  Character  of  memoranda  employed  to  refresh  the 
memory. — The  writing  used  to  refresh  the  memory  should  or- 
dinarily be  contemporaneous  with  the  transactions  or  facts 
which  are  mentioned  in  it.1  This  is  the  rule  which  has  re- 
ceived the  support  of  the  majority  of  cases.  But  many  author- 
ities hold  that  the  writing  need  not  have  been  made  precisely 
at  the  time  of  the  events  it  describes,  if  it  was  made  before  the 
memory  of  the  person  making  it  had  become  weakened  and 
unreliable  by  lapse  of  time.2     Sometimes   copies  of  a  writing 

obvious  that  this  species  of  evidence  able  to  testify  that  he  knows  the  trans- 
must  be  admissible  in  regard  to  num-  action  took  place,  though  he  has  no 
bers,  dates  and' deliveries  of  goods,  present  recollection  of  it,  his  testi- 
payments  and  receipts  of  money,  ac-  mony  is  admissible." 
counts  and  the  like,  in  respect  to  1  Williams  v.  Wager,  64  Vt.  326,  336; 
which  no  memory  could  be  sufficient-  Weston  v.  Brown,  30  Neb.  609;  Com. 
ly  retentive  without  depending  on  v.  Clancy,  154  Mass.  128,  and  Under- 
memoranda,  and  even  they  would  not  hill  on  Ev.,  §  338. 
bring  the  transaction  to  present  rec-  2  Sisk  v.  State,  28  Tex.  App.  432, 
ollection.  In  such  cases,  if  the  wit-  437;  Culver  v  Scott,  53  Minn.  360,  55 
ness,   on  looking  at  the  writing,    is  N.   W.  Rep.  552;    McGowan  v.  Mc- 


§219  THE    EXAMINATION    OF    WITNESSES.  269 

or  memorandum  made  at  the  time  of  the  facts  which  are  tran- 
scribed have  been  used  to  refresh  the  memory  when  the  copy 
was  made  after  the  original,  but  only  if  the  witness  could  swear 
of  his  own  knowledge  to  their  accuracy,1  and  the  absence  of  the 
original  is  properly  accounted  for.2  So  a  newspaper  reporter, 
testifying  as  a  witness,  may  refresh  his  memory  by  reading  a 
printed  article  published  from  manuscript  furnished  by  him, 
on  proof  that  the  original  was  destroyed.8 

§  219.    Purpose  and  importance  of  cross-examination. — As 

a  means  of  ascertaining  truth,  cross-examination  is  correctly 
deemed  to  be  at  once  effective  and  impartial.4  Writers  on  evi- 
dence have  frequently  adverted  to  its  peculiar  efficacy  and 
excellence,  as  a  means  of  investigating  the  motives  and  per- 
sonal prejudices  of  the  witness,  his  relation  to  the  accused  or 
to  the  prosecution,  or  to  the  criminal  transaction  which  is 
under  investigation.  By  this  process  his  knowledge  and  gen- 
eral intelligence,  the  vividness  of  his  memory,  his  impartiality 
or  bias  towards  the  accused,  his  means  of  observation  and  his 
opportunities  for  obtaining  accurate  and  full  information  may 
all  be  explored  and  ascertained  for  the  consideration  of  the 
jurors  to  assist  them  in  determining  the  weight  they  shall  give 

Donald,  111  Cal.  57,  43  Pac.  Rep.  418;  1  Stavinow  v.  Home  Ins.  Co.,  43 
Adams  v.  Trustee,  37  Fla.  266,  20  So.  Mo.  App.  513,  518;  Watson  v.  Miller, 
Rep.  266 ;  Wilber  v.  Scherer,  13  Ind.  82  Tex.  279,  285 ;  Bonnet  v.  Gladfeldt, 
App.  428,  41  N.  E.  Rep.  837 ;  Dwight  24  111.  App.  533 ;  Flint  v.  Kennedy,  33 
v.  Cutting,  91  Hun  38,  36  N.  Y.  S.  99.  Fed.  Rep.  820;  People  v.  Munroe,  100 
Testimony  before  the  grand  jury,  Cal.  664,  33  Pac.  Rep.  776. 
taken  four  months  after  the  occur-  2  Anderson  v.  Imhoff,  34  Neb.  335 ; 
rences  to  which  it  relates,  can  not  be  Birmingham  v.  McPoland,  96  Ala. 
used  to  refresh  the  memory  of  wit-  363,  11  So.  Rep.  427. 
nesses  called  to  prove  those  occur-  3  Hawes  v.  State,  88  Ala.  37,  67. 
rences.  Putnam  v.  United  States,  162  4  "Cross-examination,  which  is  the 
U.  S.  687,  16  S.  Ct.  Rep.  923.  Counsel  right  of  a  party  against  whom  a  wit- 
have  been  permitted  to  refresh  the  ness  is  called,  is  a  means  of  sepa rat- 
memory  of  a  forgetful  •  witness  by  ing  hearsay  from  knowledge,  error 
reading  his  evidence  on  a  former  trial  from  truth,  opinion  from  fact,  influ- 
from  the  stenographer's  notes.  Ehris-  ence  from  recollection;  of  ascertain- 
man  v.  Scott  (Ind.,  1893),  32  N.  E.  ing  the  order  of  the  events  as  narrated 
Rep.  867;  Battishal  v.  Humphrey,  64  by  the  witness  in  his  examination-in- 
Mich.  514.  chief,  the  time  and  place,  when  and 


270  CRIMINAL  EVIDENCE.  §  220 

to  his  evidence.1  Whether  a  witness  has  been  examined  so 
that  the  opposite  party  shall  be  entitled  to  cross-examine  is 
sometimes  an  important  question.  A  witness  who  has  been 
sworn,  but  to  whom  no  questions  have  been  put,  can  not  be 
cross-examined.2  This  is  the  case  where  the  only  object  of 
calling  the  witness  is  to  procure  a  writing  which  is  to  be 
proved  by  another  witness.3 

One  of  several  jointly  indicted  and  tried  may  be  required  to 
cross-examine  the  state's  witnesses  and  produce  his  own  before 
the  same  is  done  by  his  co-defendants.4 

§  220.  When  right  to  cross-examine  is  lost — Cross-exami- 
nation confined  to  matters  brought  out  on  direct. — Where 
either  party  has  a  right  to  cross-examine  in  civil  cases,  it  is  re- 
versible error  for  the  court  to  refuse  to  permit  the  exercise  of 
the  right.  But  the  right  of  cross-examining  is  forever  waived 
by  the  party  making  the  witness  his  own.5 

A  party's  right  to  cross-examine  is  not  lost  because  he  fails 
to  object  to  a  direct  examination  had  out  of  the  regular  order.6 
The  remedy  for  a  defendant  who  has,  for  any  reason,  been  de- 
prived of  an  opportunity  to  cross-examine  is  to  move  to  strike 
out  the  evidence  given  on  the  direct  examination  and  to  re- 
quest an  instruction  that  the  jury  should  disregard  it.7 

The  scope  and  right  of  a  cross-examination  are  generally 
limited  to  subjects  upon  which  the  witness  has  been  interro- 
gated on  the  direct  examination.  That  is,  counsel  cross-exam- 
ining will  not  be  permitted  to  ask  leading  or  general  questions 
on  matters  which,  though  involved  in  the  general  issue  of  the 
prisoner's  guilt,  were  not  touched  on  in  the  direct  examination.8 

where  they  occurred,  and  the  attend-  4  State  v.  Howard,  35  S.  Car.  197, 

ing  circumstances,  and  of  testing  the  200. 

intelligence,     memory,     impartiality  5  Hemminger  v.  Western  Assn.,  95 

truthfulness  and  integrity  of  the  wit:  Mich.  355,  359,  54  N.  W.  Eep.  949. 

ness."    The  Ottawa,  3  Wall.  (U.  S.)  6  Graham  v.  Larimer,  83  Cal.  173, 

268,  271.  180. 

1 1  Greenl.  on  Ev.,  §  446;  1  Stark.  7  People  v.  Cole,  43  N.  Y.  508. 

onEv.,  §§  160,  161.  8  Wood  v.  State,  92  Ind.  269,  273; 

2  Austin  v.  State,  14  Ark.  555,  563.  Britton  v.   State,    115    Ind.    55,    61; 

sEush  v.  Smith,  1  C.  M.  &  R.  94;  Adams  v.  State,  28  Fla.  511;  State  v. 

Underhill  on  Ev.,  p.  481.  Chamberlain,  89  Mo.  129,  133;  State 


§221  TIIK    EXAMINATION    OF    WITNESSES.  271 

While  counsel  may  cross-examine  od  relevant  facts  gone  into 
on  the  direct  examination,  he  may  not  open  his  own  case 
and  present  evidence  to  support  it  by  cross-examining  the 
adverse  witnesses.     If  he  wants  theii  evidence   he  musl   call 

them  as  witnesses.  This  rule,  as  we  shall  see,  is  qualified  by 
the  principle  which  permits  seemingly  irrelevant  questions  on 
cross-examination  for  the  purpose  of  testing  credibility  and 
bias. 

A  witness  may  be  pressed  for  an  answer  when,  on  cross-ex- 
amination, he  avoids  replying  or  parries  the  questions.  And 
counsel  should  not  be  allowed  to  interpose  frivolous  objections 
in  order  to  prevent  a  rapid  cross-examination  and  to  afford  the 
witness  an  opportunity  to  fabricate  evidence.1  The  extent, 
however,  to  which  the  same  question  may  be  asked,  is  largely 
in  the  discretion  of  the  court.2 

§  221.  Cross-examination  to  test  credibility. — Though  the 
refusal  or  allowance  of  cross-examination  upon  irrelevant  mat- 
ters bearing  wholly  on  credibility  is  largely  within  the  discre- 
tion of  the  court,  the  right  to  cross-examine  upon  transactions 
directly  relevant  which  have  been  brought  out  in  the  exam- 
ination-in-chief is  absolute.  .And  the  fact  that  relevant  evi- 
dence, which  is  elicited  by  a  proper  question  put  on  the  direct 
examination,  has  been  improperly  stricken  out,  furnishes  no 
basis  for  a  claim  that  other  strictly  competent  evidence  of  the 
same  transaction  should  be  expunged  when  stated  by  the  wit- 
ness on  the  cross-examination.3 

The  limits  within   which  either    party  may  cross-examine 

v.  Farrington,  90  Iowa  673,  57  N.  W.  172,  42  Pac.  Rep.  828;  State  v.  Lewis 

Rep.  606;    Gale  v.  People,  26  Mich.  (Mo.,  1897),  37  S.  W.  Rep.  806,  and 

157,  160;  State  v.  Willingham,  33  La.  cases  fully  cited  Underbill  on  Ev.,  p. 

An.    537;   People    v.  Durrant    (Cal.,  482. 

1897),  48  Pac.  Rep.  75;    Sheehan  v.  J State  v.  Duncan,  116  Mo.  288,  311, 

People,  131  111.  22,  24;  People  v.  Van  22  S.  W.  Rep.  699. 

Ewan,  111  Cal.  144,  43  Pac.  Rep.  520;  *  Brown  v.  State.  72  Md.  477;  Me- 

Gemmill  v.  State  (Ind.,  1896),  43  N.  Guire  v.  Lawrence  Mfg.  Co.,  156  Mass. 

E.  Rep.  909;    State  v.  Case   (Iowa,  324 ;  Wood  t>.  State,  92  Ind.  269,  272. 

1896),  65  N.  W.   Rep.  149;    State  v.  sTurnbull  v.  Richardson,  69  Mich. 

Judiesch  (Iowa,  1896),  65  N.  W.  Rep.  400. 
137  ;  State  v.  Zimmerman,  3  Kan.  App. 


272 


CRIMINAL    EVIDENCE. 


§221 


upon  matters  not  strictly  relevant,  but  which  affect  the  credi- 
bility of  the  evidence,  is  largely  discretionary,1  and  a  reasonable 
exercise  of  this  discretion  in  limiting  the  duration  or  modify- 
ing the  method  of  the  cross-examination,  or  in  admitting 
seemingly  immaterial  questions  tending  to  explain  the  motives,2 
opportunities,3  and  powers  of  observation,  the  knowledge,4 
memory  or  recollection,5  reliability  or  good  faith  of  the  witness,6 
will  always  be  allowed.  Questions  put  to  the  witness  for  the 
purpose  of  ascertaining  his  relations,  business,  social  or  other- 
wise, with  the  accused  and  his  state  of  mind,  whether  hostile 
or  friendly  towards  him,  are  unobjectionable.7 

The  court  may,  in  its  discretion,  refuse  to  permit  the  cross- 
examination  to  be  unreasonably  prolonged,8  or  it  may  refuse  to 
allow  a  question  to  be  repeated  when  it  has  been  answered  sat- 


1  State  v.  Morris,  109  N.  Car.  820 
821 ;  State  v.  Miller,  93  Mo.  263,  268 
Bessette    v.  State,  101    Ind.   85,   88 
Wachstetter  v.  State,  99  Ind.  290,  295 
Davison  v.  People,  90  111.  221 ;  Ball  v. 
United  States,  163  IT.  S.  662;  People 
v.  Knight  (Cal.,  1896),  43  Pac.  Rep.  6; 
State  v.  McGowan,  66  Conn.  392,  34 
Atl.  Rep.  99;  State  v.  Osborne  (Iowa, 
1896),  65  N.  W.   Rep.   159;  State  v. 
Weems  (Iowa,  1896),  65  N.  W.  Rep. 
387 ;  Com.  v.  Flynn,  165  Mass.  153, 42 
N.  E.  Rep.  562;  and  see  Underbill  on 
Ev.,  p.  483. 

*  People  v.  Thomson,  92  Cal.  506. 

s  For  example,  a  witness  to  a  noc- 
turnal homicide  may  be  asked  if  the 
moon  was  shining,  to  ascertain  his  fa- 
cilities for  observing  the  movements 
of  deceased  and  all  the  surrounding 
circumstances.  State  v.  Avery,  113 
Mo.  475,  499.  The  courts,  while  guard- 
ing against  any  abuse  of  the  right  to 
cross-examine,  must  watch  with  care 
against  attempts  to  evade  or  restrict 
it.  Robnett  v.  People,  16  111.  App. 
299;  Tracy  v.  People,  97  111.  101; 
Holmes  v.  State,  88  Ala.  26,  29. 


4  Williams  v.  State,  32  Fla.  251,  13 
So.  Rep.  834. 

5  State  v.  Duffy,  57  Conn.  525,  529; 
Sewall  v.  Robbins,  139  Mass.  164.  A 
witness  may  be  required  to  repeat  on 
cross-examination  his  evidence  to  a 
particular  point  given  on  his  direct 
examination  to  test  his  memory  and 
to  ascertain  if  he  will  contradict  him- 
self. Zucker  v.  Karpeles,  88  Mich.  413, 
424. 

6  State  v.  Philpot  (Iowa,  1896),  66 
N.  W.  Rep.  730;  Com.  v.  Flynn,  165 
Mass.  153,  42  N.  E.  Rep.  562;  State  v. 
Hayward,  62  Minn.  474,  65  N.  W.  Rep. 
63;  State  v.  Weems  (Iowa,  1896),  65 
N.  W.  Rep.  387 ;  Bessette  v.  State,  101 
Ind.  85,  88;  Murray  v.  G.  W.  Ins. 
Co  ,  72  Hun  282,  25  N.  Y.  Supp.  414. 

7  Com.  v.  Lyden,  113  Mass.  452, 
453;  Com.  v.  Shaw,  4  Cush.  593;  Peo- 
ple v.  Thomson,  92  Cal.  506,  509; 
United  States  v.  Cross,  20  D.  C.  (9 
Mackey)  365 ;  Holmes  v.  State,  88  Ala. 
26,  29,  and  Underhill  on  Ey.,  p.  483. 

8  Pennsylvania  Co.  v.  Newmeyer, 
129  Ind.  401. 


§  'll'l  THE    EXAMINATION    OF    WITNESSES.  273 

isfactorily,1  or  may  exclude  questions  designed  solely  to  ascer- 
tain what  witnesses  it  may  be  advantageous  to  cull.2 

The  rule  under  which  evidence  of  collateral  facts  is  excluded 
during  the  direct  examination  is  not  applied  with  strictness  to 
the  cross-examination.  The  theory  upon  which  the  latter  is 
conducted  is  that  its  primary  object  is  the  ascertainment  of 
truth,  not  by  eliciting  positive  evidence  directly  bearing  on  the 
facts,  but  by  furnishing  a  means  of  testing  the  truthfulness 
and  credibility  of  the  witness. 

§  222.  When  answers  to  questions  involving  collateral  mat- 
ters asked  in  cross-examination  may  be  contradicted. — Hos- 
tility or  friendship  towards  the  accused. — It  is  never  permissible 
to  cross-examine  upon  matters  wholly  irrelevant  and  collateral 
to  the  crime  merely  for  the  purpose  of  contradicting  the  wit- 
ness on  those  points  by  other  evidence.  And  if  the  cross-ex- 
aminer shall  happen  to  bring  out  irrelevant  facts  he  is  con- 
cluded thereby,  and  can  not  contradict  them.3  It  is  proper, 
however,  to  ask  the  witness  if  he  did  not  at  a  particular  time 
and  place,  which  must  be  mentioned,  give  a  different  account 
of  relevant  facts  to  that  which  he  gave  on  his  direct  exami- 
nation. If  he  denies  that  he  has  done  so,  a  sufficient  founda- 
tion is  laid  for  his  impeachment,  which  may  then  be  accom- 
plished by  the  testimony  of  a  witness  who  was  present  and 
heard  the  contradictory  statement.4 

The  feelings,  bias  and  relationship  of  the  witness  are  never 

Putsch  v.   Mcllhargey,   69   Mich.  Ky.  164,  167,168;    State  v.  Reick,  43 

377,  379;   Hughes  v.  Ward,  38  Kan.  Kan.  635,  637;  People  r.Tiley,  84  Cal. 

452,  454;  Masons  v.  Hinds,  19  N.  Y.  651,  655;  People  v.  Dye,  75  Cal.  112. 

Supp.996.  4  People  v.  Williams,  108  Cal.  1ST; 

2 United   States  v.  Cross,  20  D.  C.  State©.  Baldwin,  36  Kan.  1;  State  v. 

(9  Mackey)  365.  Tabot,  73  Mo.  347;  State  v.  Zimmer- 

8lGreenl.  on  Ev.,  p.  484;   State  v.  man,3Kan. App.172.42Pac.Rep.828. 

Ellwood,  17  R.  1.763,  770;   Moore  v.  See  Underbill  on  Ev.,  §350,  for  civil 

People,  108  111.  484;   Bressler  v.  Peo-  cases.     Where    a    witness    makes    a 

pie,  117  111.  422;  People  r.  Hillbonse,  statement   on    cross-examination   be 

80  Mich.  580,  585 ;   Com.  v.  Hourigan,  may  be  asked  if  he  did  not  give  differ- 

89  Ky.  305,  312;   Batten  v.  State,  80  ent  testimony  on  a  former  trial. 
Ind.  394,  399;  Crittenden  v.  Com.,  82 
18— Cr.  Ev. 


274  CRIMINAL  EVIDENCE.  §  223 

collateral.1  A  witness  may  be  interrogated  on  cross-examina- 
tion as  to  his  interest,  bias  or  prejudice,  that  is  to  say,  if  the 
sole  purpose  of  the  question  is  to  elucidate  the  existing  or 
previous  relationship,  feeling  or  conduct  of  the  witness  toward 
the  crime,  the  accused,  or  the  prosecutors. 

The  witness  may  be  asked  generally,  if  he  has  not  expressed 
or,  perhaps,  entertained  feelings  of  hostility,  or  acted  in  an 
unfriendly  manner  towards  or  quarreled  with  the  accused.  So, 
for  example,  a  prosecuting  witness  may  be  asked  if  he  has  not 
had  the  accused  arrested  before,2  and,  if  he  has  not  retained 
counsel  to  aid  the  state  in  the  trial  which  is  pending.3  He 
should  be  allowed   to   explain  his  motives  in  hiring  counsel.4 

If  the  witness  refuses  to  answer  such  questions,5  or  answers 
them  in  the  negative,  the  contrary  fact  may  be  shown  by  the 
evidence  of  others.6  But  where  a  witness  states  that  though 
once  hostile  he  is  so  no  longer,  evidence  of  his  previous  hostil- 
ity, being  too  remote,  is  irrelevant.7 

§  223.  Redirect  examination. — A  party  calling  a  witness 
may  re-examine  him  after  he  has  been  cross-examined.  On 
this  re-examination  the  witness  may  be  questioned  as  to  con- 
tradictions, and  inconsistent  statements  made  on  his  cross- 
examination  ;  and  he  may  state  and  explain  the  motives  for 
his  acts  which  he  described  on  cross-examination.8  Questions 
may  be  put  on  the  redirect  examination  for  the  purpose  of 
ascertaining  the   real  meaning   of  the   language   used  on  the 

Brampton  «.  State,  52  Ark.  273,  274.  506,  509,  510;  Newcomb  v.  State,  37 

2  People  v.  Lee  Ah  Chuck,  66  Cal.  Miss.  383;  People  v.  Goldenson,  76 
662,667.  Cal.  328;    Cornelius  v.    Corn.,    15  B. 

3  People  v.  Blackwell,  27  Cal.  65;  Mon.  (Ky.)  539;  Com.  v.  Byron,  14 
Ball  v.  United  States,  163  IT.  S.  662.  Gray  31 ;  Kent  v.  State,  6  Crim.  Law 

4Peoplev.  Blackwell,  27  Cal.  65.  Mag.  520.   In  People  v.  Brooks,   131 

5  State  v.  McFarlain,  41  La.  An.  686.  N.  Y.  321,  it  was  held  that  the  hostil- 

6  State  v.  Johnson,  48  La.  An.  437;  ity  of  an  adverse  witness  might  be 
Lyle  v.  State,  21  Tex.  App.  153;  Peo-  shown  without  questioning  him,  and 
pie  o.  Gillis,  97  Cal.  542,  544,  32  Pac.  see  Underhill  on  Ev.,  §  354  b. 

Rep.  586;  Bonnard  v.  State,  25  Tex.        7Consaul  v.  Sheldon,  35  Neb.  247. 
App.  173,  196;  Scott  v.  State,  64  Ind.        8  Com.  v.  Dill,  156  Mass.  226,  228; 

400,  402;   Crumpton  v.  State,  52  Ark.  Wilson  v.  People,  94  111.  299;  State  v. 

273,  274;  People  v.  Thomson,  92  Cal.  Hicks,  20  S.  Car.  341. 


§223  TIIK    EXAMINATION    <>!■'    WITNESSES.  275 

cross-examination.  From  this  it  will  often  appear  that  t In- 
inconsistent  or  contradictory  character  of  the  statements  is 
more  apparent  than  real.1 

The  party  calling  the  witness  ought  on  the  examination-in- 
chief  to  interrogate  him  on  all  material  matters.  No  new 
questions  can  be  put  on  the  re-direct  examination  which  are 
not  connected  in  some  way  with  the  cross-examination.  But 
the  courts  of  original  jurisdiction  have  varied  this  rule,  and  it 
remains  for  them  to  determine  whether  in  any  particular  case 
the  facts  warrant  a  departure  therefrom.  This  discretion  the 
appellate  court  will  not  interfere  with  except  in  the  case  of  its 
gross  abuse,  when  manifest  injustice  would  surely  ensue.2 
But  on  the  re-direct  examination  counsel  will  be  permitted  to 
ask  questions  which  will  explain  all  answers  which  were 
brought  out  on  the  cross-examination  from  which  wrong  in- 
ferences might  be  drawn  by  the  jury,  or  which  have  a  tendency 
to  cast  doubt  upon  the  credibility  of  the  evidence  of  the  wit- 
ness.3 

A  suggestive  mode  of  questioning  a  witness  on  the  re-direct 
examination,  though  sometimes  permitted,4  and  always  in  the 
discretion  of  the  court,  is  not  to  be  commended.  Counsel 
should  not  be  allowed  to  extricate  an  untruthful  witness  from 
the  difficulties  and  inconsistencies  into  which  he  has  plunged 
by  repeating  to  him  his  evidence  on  the  direct  examination, 
and  asking  him  if  the  statements  made  on  the  cross-examina- 

1  Smith  v.  State,  21  Tex.  App.  277 ;  Blatehf.  475.     When  the  prosecuting 

State  v.  Reed,  89  Mo.  168.  witness,  a  minor,  admitted  on  cross- 

2Sartorious   v.    State,  24  Miss.  602,  examination  that  a  writing  signed  by 

609;  Schaser  v.  State,  36  Wis.  429,  433.  her  had  been  prepared  by  the  district 

Cf.   Miller  v.  Railroad  Co.,  89  Iowa  attorney   and  signed  at  his  bidding, 

567,  57  N.  W.  Rep.  418,  420;   City  of  she  was  allowed,  on  the  re-direct  rx- 

Springfield  v.  Dalby,  139  111.  34,  38.  animation,  to  Btate  that  the  statement 

3 Peoples.  Buchanan,  145 N.Y.I,  25;  was  wholly  voluntary   and  true,  and 

State  v.  McGahey  3  N.  Dak.  293,  55  that  its  language    was  substantially 

N.  W.  Rep. 753,  757;  Bracken  v.  State,  her  own.     People  >■.   Mills,  94  Mich. 

Ill  Ala.  68,  20  So.  Rep.  636;   Collins  630.  637,  54  X.  W.  Rep.  488;  see,  also, 

v.  State,  46  Neb.  37,  64  X.  W.  Rep.  Underbill  on  Ev.,  p.  487. 

432;    United    States    v.    Barrells,    8  4  Smith  v.  State,  21  Tex.  App.  277. 


276  CRIMINAL  EVIDENCE.  §  224 

tion  are  consistent  therewith.1  If  the  court  permits  a  witness 
to  answer  irrelevant  questions  or  to  give  irrelevant  replies  on 
the  cross-examination,  the  party  calling  him  has  the  right  to 
question  him  on  such  matters  on  the  re-direct  examination.2 
In  case  the  adverse  party  desires  to  re-examine  the  witness  he 
may  then  do  so  on  the  re-cross-examination,  but  must  restrict 
himself  to  new  matter  brought  out  on  the  re-direct  examina- 
tion. 

§  224.  Recalling  witnesses. — Whether  a  witness,  after  he 
has  left  the  stand,  shall  be  allowed  to  be  recalled  by  the  party 
in  whose  behalf  he  testified,  or  for  further  cross-examination,3 
is  wholly  discretionary  with  the  court,4  and  this  discretion  was 
held  not  to  have  been  abused  where  a  witness  was  recalled  af- 
ter a  direct,  cross,  re-direct  and  re-cross  examination.5  Where 
a  witness  is  unable  to  answer  positively  or  definitely,  while  on 
the  stand,  the  court  may  properly  refuse  to  permit  his  recall 
for  additional  examination,6  or  to  permit  a  witness,  who  has 
already  testified  fully  and  exhaustively,  to  be  recalled  solely 
for  the  purpose  of  having  him  repeat  his  testimony  or  to  ob- 
tain cumulative  evidence.7  If  there  is  a  dispute  as  to  what  tes- 
timony a  witness  has  given,  or  if  the  jurors  did  not  understand 

1  Smith  v.  State,  21  Tex.  App.  277 ;  89  Va.  679,  685 ;  State  v.  Huff,  76  Iowa 

Stoner  v.  Devilbiss,  70  Md.  144,  160;  200,  202;  Hollingsworthv.  State,  79  Ga. 

Moody  v.  Rowell,  17  Pick.  490,  499,  605,  607;  Underhill  on  Ev.,  §342,  citing 

500.  civil  cases.    The  prosecutrix,  in  a  trial 

2 Peoples.  McNamara,  94  Cal.  509,  for  rape,  may  be  recalled  to  testify 

512;   State  v.  Cardoza,  11  S.  Car.  195,  to  non-consent  after  both  sides  have 

242;   Schaser  v.   State,   36  Wis.   429,  rested.    State  v.  Case  (Iowa,  1896),  65 

433.     See  Underhill  on  Ev.,  §  341.  N.  W.  Rep.  149.    In  State  v.  Clyburn, 

3 People  v.  Parton,  49  Cal.  632.  16  S.  Car.  375,  it  was  held  that  the 

4  State  v.  Robinson  (Ore.,  1897),  48  judicial  discretion  was  properly  exer- 

Pac.  Rep.  357 ;  Faust  v.  United  States,  cised  when  a  witness  for  the  state  was 

163  U.  S.  453, 16  S.  Ct.  Rep.  1112 ;  Pigg  recalled  to  prove  a  single  fact,  though 

v. State  (Ind.,  1896), 43  N.  E.  Rep.  309;  the  examination  of  the  witnesses  for 

Chapman  v.  James  (Iowa,  1896),  64N.  the  accused  was  thereby  interrupted. 

W.  Rep.  795 ;  Robbins  v.  R.  R.  Co.,  165  5  State  v.  Jacobs,  28  S.  Car.  29,  37, 

Mass.   30;    Lafferty  v.    State    (Tex.,  38;  Brown  v.  State,  72  Md.  468. 

1896),   35  S.  W.  Rep.   374;   Riley  v.  6 Bonnet  v.  Gladfeldt  (Glattfeldt), 

State,  88  Ala.  193, 196;  States.  Dilley,  24  111.  App.  533,  120  111.  166. 

15  Ore.  70,  75,  76;  Humphrey  v.  State,  'Chicago,   etc.,   Co.    v.   Hazels,   26 

78  Wis.  569,  571;  Snodgrass  v.  Com.,  Neb.  364. 


§225  THE    EXAMINATION    OF    WITNESSES.  27' 

or  have  forgotten  what  he  said  it  is  very  proper  to  allow  him 
to  restate  his  testimony,  even  after  the  case  is  closed.1  But  the 
practice  is  open  to  the  serious  objection  thai  it  may  lead  to  in- 
justice to  the  prisoner  by  placing  too  much  emphasis  on  some 
material  evidence  against  him.  If  a  witness  is  recalled  for  fur- 
ther direct  examination,  or  for  further  cross-examination,  the 
other  side  has  the  right  of  further  cross-examination  or  of  fur- 
ther re-direct  examination. 

§  225.  Exclusion  and  separation  of  witnesses. — The  presid- 
ing judge  may,  when  it  shall  seem  necessary  for  the  due 
administration  of  justice,  order  a  separation  of  the  witnesses, 
and  the  exclusion  of  all  witnesses,  expert,2  or  otherwise,  from 
the  court-room  while  any  witness  is  under  examination.3  The 
value  and  importance  of  this  order  in  criminal  trials  to  pre- 
vent collusion  among  witnesses  are  self-evident,  and  can 
hardly  be  overestimated.  In  the  absence  of  statute  the  order 
is  not  of  right.  But  it  is  seldom  refused  if  it  appears  that  the 
ascertainment  of  truth  will  be  advanced. 

If  a  witness  returns  after  leaving  the  court,  or  remains 
through  inadvertence  after  the  separation  of  witnesses  has  been 
ordered,  the  court  may,  in  its  discretion,  refuse  to  permit  him  to 
be  examined,4  and  its  action  will  not  be  reversible  error  unless 
serious  injustice  is  done  the  prisoner,  as,  for  example,  where 
he  is  deprived  of  the  evidence  of  a  material  witness.5    But  this 

1  Bennifield  v.  State,  62  Ark.  365,  35  Roberts  v.  Com.,  94  Ky.  499, 22  8.  W. 
S.  W.  Rep.  790;  Hayes  v.  State  (Tex.,  Rep.  845;  People  v.  Sam  Lung,  70  Cal. 
1896),  35  S.  W.  Rep.  983;  Lafferty  v.  515,  516,517;  Haines  v.  Territory.  :: 
State,  35  S.  W.  Rep.  374;  State  v.  Wyo.  167;  Underbill  on  Ev.,  §330, 
Jobnson,  89  Iowa  1 ;  Dillard  v.  State,  citing  civil  cases. 

58  Miss.  368,  390.  4  State  v.  Fitzsimmons,  30  Mo.  236, 

2  Vance  v.  State,  56  Ark.  402,  405;  239;  State  v.  Brooksbire,  2  Ala.  303, 
Reg.  v.  Frances,  4  Cox  C.  C.  57,  58.  305;  McLeon  v.  State,    16   Ala.    671.'; 

3  Com.  v.  Thompson,  159  Mass.  56,  Kelly  v.  People,  17  Colo.  130,  133; 
58;  State  ».  Whitworth,  126  Mo.  573;  Trujillo  v.  Territory  (X.  Mex.,  1893), 
State  v.  Fitzsimmons,  30  Mo.  236;  30  Pac.  Rep.  870;  Hey  v.  Com.,  32 
State  v.  Davis,  48  Kan.  1 ;  Barnes  v.  Gratt.  (Va.)  946. 

State,  88  Ala.  204,  208;  Kelly  v.  Peo-  5  Carlton  v.   Com.  (Ky.,    1892),  18 

pie,  17  Colo.  130,  133,  29  Pac.   Rep.  8.W.  Rep.  535;  Cook  v.  State.  30  Tex. 

805;  Nelson  v.  State,  2  Swan  (Tenn.)  App.  607,  18  S.  W.  Rep.  412;  Turner 

237 ;  Heath  v.  State,  7  Tex.  App.  464  ;  v.  State  (Tex.,  1896),  32  SAW  Rep.  700. 


278 


CRIMINAL    EVIDENCE. 


§  226 


rule  is  not  universally  recognized.  It  is  manifestly  unfair  to 
deprive  one  not  at  fault,  of  testimony  on  which  he  relies,  and 
which  may  prove  him  innocent  of  a  heinous  and  often  capital 
crime,  merely  because  his  witness,  through  carelessness,  ob- 
stinacy or  caprice,  refuses  or  neglects  to  obey  the  court.  So 
when  the  defendant  is  not  to  blame  the  witness  can  not  be  pre- 
vented from  testifying.1 

After  witnesses  not  under  examination  have  been  ordered  to 
withdraw,  the  court  may  permit  one  or  more  of  them  to  remain. 
An  exception  must  always  be  made  in  the  case  of  the  accused, 
if  he  is  a  witness,  because  of  his  constitutional  right  to  be  pres- 
ent and  to  confront  the  witnesses  against  him.2  So  an  excep- 
tion is  always  made  in  the  case  of  counsel,  or  a  sheriff  or  other 
officer  of  the  court,3  or  a  juror  4  who  is  also  a  witness.5 

§  226.  Refusal  to  testify. — If  a  witness  refuses  to  attend,6 
or,  if  he  attend  and  refuse  to  be  sworn,7  or  to  answer  a  relevant 
question  without  a  satisfactory  excuse,8  or  acts  insolently  or 
disrespectfully  towards  the  court  or  the  grand  jury,9  he  is  guilty 
of  a  contempt. 

The  power  to  punish  a  contumacious  witness  for  refusing  to 
testify  is  limited  to  courts  of  record  and  to  legislative  bodies, 
in  the  absence  of  any  statute  conferring  it  on  other  officials 

1  Cunningham  v.  State,  97  Ga.  214, 
22  S.  E.  Rep.  954;  Goon  Bow  v.  Peo- 
ple, 160  111.  438.  43  N.  E.  Rep.  593; 
State  v.  Jones,  47  La.  An.  1524,  18  So. 
Rep.  515;  Hellems  v.  State,  22  Ark. 
207;  Taylor  v.  State,  130  Ind.  66,  70; 
State  v.  Ward,  61  Vt.  153,  179 ;  Grant 
v.  State,  89  Ga.  393 ;  Sartorius  v.  State, 
24  Miss.  602,  608 ;  Pleasant  v.  State, 
15  Ark.  624;  State  v.  King  (S.  D., 
1897),  70  N.  W.  Rep.  1046;  Ashwood 
v.  State  (Tex.,  1897),  40  S.  W.  Rep. 
273.  The  disobedient  witness  may  be 
punished  for  contempt.  Lassiter  v. 
State,  67  Ga.  739,  741. 

2  Boatmeyer  y.  State,  31  Tex.  Cr. 
App.  473,  474. 

3  Kelly  v.  People,  17  Colo.  130,  133 ; 
State  v.  Hopkins,  50  Vt.  316. 


4  State  v.Vari,  35  S.  Car.  175,  and  see 
Underhill  on  Ev.,  p.  468,  n.  4. 

5  The  court  will  not  prohibit  ex- 
cluded witnesses  from  reading  news- 
papers containing  accounts  of  the 
trial.     Com.  v.  Hersey,  2  Allen  173. 

6  Burr's  Trial,  354 ;  Ex  parte  Lang- 
don,  25  Vt.  680 ;  In  re  Ellerbe,  13  Fed. 
Rep.  530;  Ex  parte  Judson,  3  Blatchf. 
C.  C.  89,  90.  An  attachment  will  not 
issue  to  compel  an  expert  witness  or 
an  interpreter  to  attend.  In  re  Roel- 
ker,  1  Sprague  Dec.  276. 

7  Ex  parte  Stice,  70  Cal.  51,  53. 

8  United  States  v.  Coolidge,  2  Gall. 
C.  C.  364. 

9  United  States  v.  Caton,  1  Cranch 
C.  C.  150. 


§227 


THE    EXAMINATION    OF    \\  TIN  I 


279 


whose  duty  it  may  be  to  interrogate  witnesses.1  A  court  may 
punish  as  a  contempt  the  refusal  of  a  witness  to  testify  before 
a  commissioner  appointed  by  it  to  lake  depositions," or  before  the 
grand  jury  over  which  it  exercises  control,' and   it  may  do  su 

often  as  the  witness  refuses.4 

When  the  witness  has  the  statutory  right  to  answer  pertinent 
questions  only,  he  can  not  be  committed  for  contempt  if  he 
refuses  to  answer  those  which  are  not  pertinent.5  If  the 
court  has  not  obtained  jurisdiction,  a  witness  who  refuses  to 
testify  is  not  in  contempt.6 


§  227.  Interpreting  the  language  of  the  witness. — The  em- 
ployment of  an  interpreter  when  the  witness  is  unable  to  speak 
or  to  understand  the  English  language,7  and  the  manner  in 
which  the  examination  through  the  interpreter  shall  be  con- 
ducted,8 are  discretionary  with  the  court  when  not  expressly 
regulated  by  statute.  But,  where  a  party  in  a  civil  trial  was 
deprived  of  the  testimony  of  a  material  witness  (and  a  fortiori 
this  rule  would  seem  applicable  where  one  is  accused  of  crime), 
by  the  refusal  of  the  court  to  accept  an  interpreter  who  was 
offered,  a  new  trial  was  granted.9 

A  witness  may  act  as  interpreter.10   But  every  non-official  in- 


1  People  v.  Rice,  57  Hun  62,  ION.  Y. 
Supp.  270;  White  r.  D.  S.  Morgan  & 
Co.,  119  Ind.  338;  Llewellyn's  Case, 
13  Pa.  Co.  Ct.  Rep.  126, 127;  Ex  parte 
Woodworth,  29  W.  L.  Bui.  315,  and 
cases  in  Underhill  on  Ev.,  p.  468. 

2  Robb's  Case,  11  Pa.  Co.  Ct.  Rep. 
442,  443.  "A  justice  of  the  peace, 
though  he  can  not  commit  a  witness 
for  contempt,  may  bind  a  witness  re- 
fusing to  testify  to  answer  an  indict- 
ment for  obstructing  justice."  Al- 
bright v.  Lapp,  26  Pa.  St.  99,  101. 

3  United  States  v.  Caton,  1  Cranch 
C.  C.  150;  In  re  Harris,  4  Utah  5; 
People  v.  Fancher,  2  Hun  226;  People 
v.  Hackley,  24  N.  Y.  74;  Ex  parte 
Stice,  70  Cal.  51,  53. 

*  Ex  pa>  te  Sticp  70  Cal.  51,  53. 


5  Ex  parte  Zeehandelaar,  71  Cal.  238, 
239. 

6  People  v.  "Warner,  51  Hun  53.  A 
publisher  of  a  newspaper  who  refuses 
to  testify  or  give  the  real  name  of  the 
author  of  a  libelous  article  may  be 
punished  for  contempt,  though  he 
himself  is  under  indictment  for  the 
libel.     Pledger  r.  State.  77  Ga.  242. 

7  Horn  v.  State,  98  Ala.  23,  13  So. 
Rep.  329;  State  t\  Severson,  78  Iowa 
653;  Livar  r.  State,  26  Tex.  App.  115, 
119.  Cf.  Thomason  v. Territory,  4  N. 
Mex.  157,  13  Pac.  Rep.  223. 

8  Skaggs  v.  State,  108  Ind.  53,  57. 

9  Chicago,  etc.,  Co.  v.  Shenk,  131 
111.  283,  285.  Cf.  People  v.  Constantino 
(N.  Y.,  1897),  47  N.  E.  Rep.  37. 

10One  of  several  witnesses  summoned 


280 


CRIMINAL    EVIDENCE. 


§  228 


terpreter  should  be  sworn  to  interpret  truly.1  The  accuracy 
of  the  interpretation  is  a  question  for  the  jury,2  and  either  side 
may  impeach  it  by  cross-examining  the  interpreter,  or  by  pro- 
ducing another  claimed  to  be  more  accurate.3 

§  228.    Improper  reception  of  evidence  by  the  jurors. — For 

the  jury  in  a  criminal  trial  to  seek  or  to  receive  evidence  out 
of  court  is  in  the  highest  degree  improper.  Such  action  preju- 
dicing the  accused  will,  if  the  verdict  might  have  been  in- 
fluenced thereby,  be  ground  for  a  new  trial. 

Jurors  will  not  be  permitted  to  experiment,4  or  take  a  pri- 
vate and  unauthorized  view,  or  to  communicate  with  other  per- 
sons, and  particularly  with  witnesses.5  But  communications 
by  jurors  with  outsiders  may  be  disregarded  if  it  clearly  ap- 
pears that  no  injustice  has  resulted  to  the  accused.6 

Neither   party  to  a  criminal   trial   has   the   right  to  submit 


before  the  grand  jury  may  act  as  an 
interpreter  for  the  others.  People  v. 
Ramirez,  56  Cal.  533,  38  Am.  Rep.  73. 
A  juror  may,  with  the  defendant's 
consent,  act  as  interpreter.  Thiede 
v.  People,  11  Utah  241,  16  S.  Ct.  Rep. 
62,  159  TJ.  S.  510;  Chicago,  etc.,  Co.  v. 
Shenk,  131  111.  283,  285. 

1  People  v.  Dowdigan,  67  Mich.  95, 
97.  Cf.  United  States  v.  Gibert,  2 
Sumn.  19.  The  fact  that  the  interpre- 
ter is  assisted  by  one  or  more  by- 
standers who  are  unsworn,  and  when 
he  is  doubtful  uses  their  knowledge  as 
an  aid  to  his  own  judgment,  render- 
ing his  own  version  finally  to  the 
court,  is  not  error.  United  States  v. 
Gibert,  2  Sumner  19. 

2Schnier  v.  People,  23  111.  11,  23,  24. 

3Skaggs  v.  State,  108  Ind.  53,56. 
The  fact  that  evidence  in  a  criminal 
trial  is  received  through  an  inter- 
preter does  not  render  it  hearsay. 
State  v.  Hamilton,  42  La.  An.  1204. 

4  Yates  v.  People,  38  111.527,  532; 
Forehand  v.  State,  51  Ark.  553,  659 ; 
People  v.  Conkling,  111  Cal.  616,  44 


Pac.  Rep.  314.  Where  the  question 
was,  could  the  prisoner's  voice  have 
been  heard  on  a  certain  occasion,  the 
experiment  of  stationing  a  man  out- 
side the  jury-room,  who  was  to  listen 
and  report  if  he  could  hear  the  voices 
of  the  jurors  through  a  closed  door, 
was  held  ground  for  a  new  trial.  Jim 
v.  State,  4  Humph.  (Tenn.)  289,  291. 

5  Epps  v.  State,  19  Ga.  102 ;  State  v. 
Fruge,  28  La.  An.  657;  March  v. 
State,  44  Tex.  64,  84;  Collier  v.  State, 
20  Ark.  36.  If  a  juror  has  knowledge 
of  the  facts  or  of  the  character  of  a 
witness,  he  should  be  called  as  a  wit- 
ness. Where  the  verdict  is  based  upon 
or  influenced  by  statements  of  facts 
known  to  the  juror  made  in  the  jury- 
room,  which  would  be  relevant  evi- 
dence if  he  were  a  witness,  a  new  trial 
will  be  granted.  Taylor  v.  State,  52 
Miss.  84,  87;  Anschicks  v.  State,  6 
Tex.  App.  524;  McKissick  v.  State,  26 
Tex.  App.  673 ;  Lucas  v.  State,  27  Tex. 
App.  322. 

6  People  v.  Boggs,  20  Cal.  432,  435; 
Epps  v.  State,  19  Ga.  102,  122. 


§228 


THE    K\  A  \l  I  NATION    OF    WI'I'.N  l 


281 


documentary  or  other  evidence  to  the  jury  except  during  the 
trial  and  in  the  presence  of  the  court.  The  reception  of  evi- 
dence out  of  court  may  cause  a  conviction  to  be  reversed.  And 
with  much  better  reason,  writings  which  are  do  part  of  the  evi- 
dence, such  as  newspapers,1  maps  or  diagrams,1  scientific 
books,3  or  legal  publications,4  are  not  permitted  to  be  perusi  'I 
by  the  jury.5  The  jurors  may,  when  out  of  court,  consult 
memoranda  or  notes  of  the  judge's  charge,"  and  all  papers 
which  are  in  evidence,7  including  the  indictment." 

The  impropriety  and  unfairness  of  permitting  jurors  to  take 
in  the  jury-room  articles  of  personal  property  which  have  been 
used  to  explain  the  evidence,  and  from  which  they  may  draw, 
in  the  absence  of  judge,  counsel  and  accused,  erroneous  and 
unjust  inferences  will  be  admitted.  Hence,  for  the  jury  to 
take  into  the  jury-room  a  weapon,  alleged  to  have  been  em- 
ployed by  the  accused,  is  reversible  error.9  Though,  if  the  ac- 
cused consent,  it  seems  that  articles,  as  clothing,  not  in  evi- 
dence, may  be  taken  by  the  jury  to  aid  them  in  their  delibera- 
tions.10 


1  State  v.  Robinson,  20  W.  Va.  713, 
763. 

2  State  v.  Hartniann,  46  Wis.  248, 
250;  State  ».  Lantz,  23  Kan.  728,  729. 

3  State  v.  Gillick,  10  Iowa  98,  101. 

4  Phillips  v.  State  (Tex.,  1896),  34  S. 
W.  Rep.  539;  State  v.  Wilson,  40  La. 
An.  751;  State  v.  Smith,  6  R.  I.  33; 
Bernhart  v.  State,  82  Wis.  23;  Harris 
v.  State,  24  Neb.  803,  809;  State  v. 
Hopper,  71  Mo.  425. 

5  See  Underbill  on  Ev.,  p.  490,  cit- 
ing cases.  The  mere  presence  of  law- 
books, etc.,  in  the  jury-room  is  not 
enough,  if  the  jury  did  not  read  them. 
State  v.  Harris,  34  La.  An.  118; 
State  v.  Tanner,  38  La.  An.  307,  308. 
This  must  be  shown.  It  will  not  be 
presumed.  Jones  v.  State,  89  Ind.  82, 
88,  89.  Cf.  Mulreed  v.  State,  107  Ind. 
62,  66. 


6  State  v.  Thompson,  83  Mo.  257, 
261;  Hurley  v.  State,  29  Ark.  17, 25,  27. 

7  People  v.  Formosa,  61  Hun  272 ; 
Masterson  ».  State,  144  Ind.  240,  43 
N.  E.  Rep.  138;  United  States  v.  Wil- 
son, 69  Fed.  Rep.  584 ;  State  v.  Lowry, 
42  W.  Va.  205,  24  S.  E.  Rep.  561; 
State  v.  Raymond,  53  N.  J.  L.  260; 
Baker  v.  Com.  (Ky.,  1892),  17  S.  W. 
Rep.  625 ;  State  v.  Tompkins,  71  Mo. 
613;  People  v.  Cochran,  61  Cal.  548; 
Cargill  v.  Com.,  93  Ky.  578,  20  B.  W. 
Rep.  7S2;  Underbill  on  Ev.,  p.  490. 

8  Stout  r.  State,  90  Ind.  1,  10. 
'Forehand   o.   state.  51   Ark.  553, 

558,  559;  Yates  v.  People,  38  111.  r>i'7, 
532. 

10  People  v.  Mahoney,  77  Cal.529, 531, 
532. 


282  CRIMINAL  EVIDENCE.  §  229 

§  229.  View  by  the  jurors — Discretionary  power  of  the 
court. — The  court  is  sometimes  permitted  by  statute  to  direct 
the  jury  trying  a  criminal  to  be  taken  in  a  body,  in  charge  of 
proper  officers,  to  the  place  where  the  crime  was  committed,  or 
where  a  material  fact  or  transaction  occurred,  or  they  may  be 
taken  out  of  court  to  view  some  bulky  article  of  personal  prop- 
erty, as  a  wagon,  which  can  not  be  brought  into  the  court- 
room. The  exercise  of  the  statutory  power  is  usually  altogeth- 
er discretionary,1  and  a  refusal  to  grant  a  view  is  not  error  un- 
less it  clearly  appear  that  it  was  necessary  and  practicable,  and 
that  the  denial  of  the  request  substantially  injured  the  accused. 

A  view  can  not,  however,  be  ordered  by  the  court  in  the  ab- 
sence of  statute  without  the  consent  of  all  parties.2  Sometimes 
the  statutory  power  may  be  exercised  sua  sponte.  Usually  the 
view  can  be  directed  only  on  request  or  with  the  consent  of 
all  parties.  Whether  in  any  case  a  request  or  consent  is  nec- 
essary depends  upon  the  express  terms  of  the  statutes,  which 
should  be  consulted.3 

§  230.  Purpose  of  the  view  is  to  afford  evidence. — The  au- 
thorities are  divided  upon  the  question  whether  the  purpose  of 
taking  the  view  is  to  furnish  new  evidence  or  to  enable  the 
jurors  to  comprehend  more  clearly  in  the  light  of  fuller  knowl- 
edge, and  by  the  aid  of  visible  objects,  the  evidence  received 
in  court.  The  latter  proposition  is  well  supported,4  and  seems 
more  consistent  with  the  conservative  theories  on  which  the 
rules  of  evidence  and  procedure  in  jury  trials  are  based.5     But 

1  Com.  v.  "Webster,  5  Cush.  (Mass.)  a  statute,  be  ordered  on  the  request  of 
295,  298;  People  v.  Hawley,  111  Cal.  the  state,  even  if  the  accused  consents, 
78,  43  Pac.  Rep.  404;  State  v.  Adams,  as  it  will  be  presumed  he  consented 
20  Kan.  311;  People  v.  Bonney,  19  because  he  did  not  wish  to  show  a  lack 
Cal.  426,  446;  Benton  v.  State,  30  of  confidence  in  the  jury's  powers  of 
Ark.  350;    Chute  v.  State,  19  Minn,  observation. 

271,  278.     See,  also,  Underhill  on  Ev.,  3  Conrad  v.  State,  144  Ind.  290,  43 

§344.  N.  E.  Rep.  221. 

2  State  v.  Bertin,  24  La.  An.  46 ;  Bos-  4  Shular  v.  State,  105  Ind.  289,  293, 
tock  v.  State,  61  Ga.  635,  639;  Com.  v.  294;  Sasse  v.  State,  68  Wis.  530,  537; 
Knapp,  9  Pick.  496,  515.     In  Smith  v.  State  v.  Adams,  20  Kan.  311. 

State,  42  Tex.  444,  448,  it  was  held        5  In  Close  v.  Samm,  27  Iowa  503,  507, 
that  a  view  can  not,  in  the  absence  of    it  is  said :  "The  purpose  is  to  enable  the 


§231 


THE    EXAMINATION    OF    WITNESSES. 


the  contrary  opinion  that  the  purpose  of  the  view  is  to  supply 
evidence  is  also  held  and  supported  by  the  majority  of  the 
cases.1  Indeed,  where  the  evidence  regarding  the  locus  in  quo 
is  at  all  contradictory,  it  is  a  mental  impossibility  for  the  jury 
to  view  it  without  receiving  some  knowledge  through  their  eyes 
which,  so  far  as  it  modifies  the  facta  proved,  or  reconciles  ewn- 
flicting  evidence,  is  itself  evidence.2 

§  231.  The  right  of  the  accused  to  be  present  during  the 
taking  of  the  view. — From  this  diversity  of  opinion  it  follows 
that  the  right  of  the  accused  to  be  present  at  the  view  is  not 
settled.  If  the  purpose  of  the  view  is  to  obtain  evidence  the 
presence  of  the  accused  is  indispensable,  even  where  the  stat- 
ute is  silent,  as  he  has  a  constitutional  right  to  confront  the 
witnesses,  to  hear  the  evidence  and  to  observe  the  actions  of 
the  jury.3  While  if  the  view  does  not  furnish  evidence  his 
presence,  while  allowable,  is  not  indispensable.4  The  accused 
can  not  be  compelled  to  be  present,  at  least  in  those  states 
where  the  view  is  not  regarded  as  furnishing  evidence.  He 
may  either  expressly,  or  by  laches  in  claiming  his  right,  waive 
the  right  to  be  present.5 


jury  the  better  to  understand  the  tes- 
timony and  thereby  the  more  intelli- 
gently to  apply  it  to  the  issues ;  not  to 
make  them  silent  witnesses,  burdened 
with  testimony  unknown  to  the  par- 
ties and  with  no  opportunity  for  cross- 
examination."  See  cases  cited  in  note 
1,  p.  282,  and  civil  cases  Underbill  on 
Ev.,  p.  491. 

1  State  v.  Bertin,  24  La.  An.  46; 
Smith  v.  State,  42  Tex.  444,  449 ;  Ben- 
ton v.  State,  30  Ark.  328,  350.  See 
cases  cited  in  note  1,  p.  282. 

2  People  v.  Bush,  68  Cal.  623,  630. 

8  Benton  v.  State,  30  Ark.  328,  350; 
People  v.  Bush,  71  Cal. .  602,  606,  68 
Cal.  623,  634;  People  v.  Palmer,  43 
Hun  397,  109  N.  Y.  413;  Rutherford 
v.  Com.,  78  Ky.  639,  640;  State  v. 
Congdon,  14  R.  I.  267;  State  v.  San- 
ders, 68  Mo.  202;  Eastwood  v.  People, 


3  Park.  Cr.  Rep.  25;  Sasse  v.  State, 
68  Wis.  530, 538;  Carroll  v.  State,  5  Neb. 
31,35;  Foster  v.  State,  70  Miss.  7-V>, 
12  So.  Rep.  822;  Conrad  v.  State,  144 
Ind.  290,  43  N.  E.  Rep.  221.  "A  per- 
son accused  of  crime  is  deprived  of  his 
right  of  appearing  in  person  and  of  be- 
ing confronted  by  the  witnesses  if  the 
jury  view  the  locus  i»  quo  without  his 
presence."  People  v.  Lowrey,  70  Cal. 
193. 

4 Com.   v.  Knapp,  9   Pick.  (Mass.) 
496;  People  v.    Bonney,  19  Cal.  426, 
446;    State   v.    Ah    Lee,    8   Ore.    214; 
Shular    v.    State.    10.".    lad.    289,    \ 
State  V.  Adams.  20  Kan.  311. 

5State  v.  Reid  (Idaho,  L894),  35 
Pac.  Rep.  706;  State  o.  Moran,  15 
Ore.  262,  277;  Sasse  v.  State,  68  Wis. 
530,  538. 


284  CRIMINAL  EVIDENCE.  §  232 

A  view  may  be  had  after  the  summing  up,1  but  no  oral  evi- 
dence should  be  brought  before  the  jury,  nor  should  they  be 
separated  while  it  is  taken.2  The  duty  of  the  showers  of  the 
view,  who  are  usually  officers  sworn  for  the  purpose,  though  a 
witness,3  or  a  juror  who  is  familiar  with  the  scene,  may  serve,4 
is  only  to  point  out  the  place.5  It  is  always  the  safer  and  bet- 
ter course  for  the  presiding  judge  to  be  present  at  the  view.6 
Kis  absence  has,  in  one  instance  at  least,  been  held  reversible 
error.7 

§  232.    Presence  of  the  accused  while  taking  testimony. — In 

order  that  a  verdict  of  guilty  of  a  felony  shall  stand,  it  is  ab- 
solutely necessary  that  the  examination  of  witnesses  shall  take 
place  only  during  the  actual  presence  of  the  accused  in  the 
court  room.8  He  must  be  present  when  the  witness  is  sworn,9 
and  an  error  in  receiving  evidence  in  his  absence  is  not  cured 
by  the  repetition  of  the  questions  and  answers  on  his  return. 

Whether  the  prisoner  was  prejudiced  by  the  testimony  given 
in  his  absence  is  immaterial.  Though  the  court  has  excluded 
the  evidence  which  he  did  not  hear,  or  has  caused  it  to  be  re- 
peated in  his  presence,  still  he  has  been  deprived  of  his  right 
to  see  the  witness,  and  to  watch  and  to  observe  his  every  look, 
gesture  and  motion.  The  court  must  see  that  the  prisoner  is 
present,  and  must  allow  nothing  to  be  done  in  his  absence.  As 
soon  as  his  absence  is  noticed,  the  trial  should  be  arrested  or 
continued.10 

1  Patching.  Brooklyn,  2  Wend.  (N.  8  Jackson  v.  Com.,  19  Gratt.  656; 
Y.)  377.  State  v.  Moran,  46  Kan.  318,  322,  26 

2  People  v.  Hull,  86  Mich.  449,  49  N.  Pac.  Eep.  754 ;  Adams  v.  State,  28  Fla. 
W.  Rep.  288.  511 ;   State  v.  David,  14  S.  Car.  428, 

3  People  v.  Bush,  71  Cal.  602,  607.  433. 

4  State  v.  Adams,  20  Kan.  311.  9  Bearden  v.  State,  44  Ark.  331. 

5  State  v.  Lopez,  15  Nev.  407;  Hay-  10  State  v.  Greer,  22  W.Va.  800,  812. 
ward  v.  Knapp,  22  Minn.  5.  Where  the  accused  is  by  mistake  ta- 

6  Benton  v.  State,  30  Ark.  328,  350.  ken  from  the  court  room  Avhile  the 

7  State  v.  Yut  Ling,  74  Cal.  569,  570.  competency  of  a  witness  is  under  dis- 
A  view  may  be  granted  though  the  cussion  an  error  is  made.  The  ac- 
place  does  not  lie  in  the  county  where  cused  has  a  right  to  hear  the  argument 
the  case  is  on  trial.  People  v.  Bush,  on  the  admissibility  of  evidence  as 
71  Cal.  602,  607.  well  as  the  evidence  itself,  and  the  fact 


§233  THE    EXAMINATION    OF    WITNESSES. 

But  this  rule,  while  designed  to  secure  him  in  his  constitu- 
tional right  to  confront  the  witnesses,  should  not  be  invoked  t  i 
delay  the  trial.  He  may  not  indulge  in  disorderly  actions 
noisy  and  outrageous  behavior,  and  shelter  himself  behind  his 
privilege.  No  step  which  is  original  in  character  can  be  taken 
in  the  prisoner's  absence.  But  after  the  evidence  is  in,  and 
the  jury  has  been  instructed  and  has  retired,  the  stenographer 
may  read  the  evidence  to  the  jury  from  his  notes  in  the  pris- 
oner's absence.  This  is  merely  a  repetition  of  what  has  already 
been  said  in  his  presence.1 

The  record  must  show  that  the  prisoner  was  in  court  during 
the  trial,  though  it  need  not  show  his  presence  was  continuous 
and  uninterrupted.  If  the  record  shows  he  was  in  court  when 
the  trial  began,  his  continuous  presence  during  the  taking  of 
testimony  will  be  presumed  in  the  absence  of  evidence  to  the 
contrary.2 

§  233.  Experiments  in  and  out  of  court. — A  non-expert  wit- 
ness will  not  be  permitted  to  testify  to  the  results  of  experi- 
ments made  out  of  court.3  But,  if  the  conditions  and  circum- 
stances existing  or  alleged  to  exist  in  the  case,  and  surrounding 
the  subject-matter,  are  reproduced  for  the  experiment,  a  witness 
who  is  an  expert  may  accompany  his  statement  of  opinion 
with  a  statement  of  the  result  of  an  experiment  out  of  court.4 

So,  in  a  murder  trial,  the  state  may  prove  the  result  observed 
after   shooting  a  bullet  through   material   identical   with  the 

that  the  court  directs  itto  be  gone  over  State  v.  Jones,  41  Kan.  309,  312,  319. 

can  not  place  him  in  the  position  of  Underhill  on  Ev.,  p.  2d<>.     Where  the 

having  heard  what  was  said  in  his  ab-  question  is,   were   the    fatal    wounds 

sence.     Adams  v.  State,  28  Fla.  511,  found  upon  the  skull  of  the  deceased 

556.  caused  by  a  blow  from  a  poker  which 

1  State  v.  Haines,  36  S.  Car.  504, 511,  is  in  evidence,  the  defendant  can  not 
15  S.  E.  Rep.  555.  prove  the  results  of  an  experiment 

2  Brown  v.  State,  29  Fla.  543,  553;  with  a  different  poker  on  the  skull  of 
10  So.  Rep.  736;  Sylvesters.  State,  71  a  dead  body.  The  different  motives 
Ala.  17,  23;  Simpson  v.  State,  56  Miss,  with  which  the  actual  criminal  and 
297,  302.       .  the  experimenting  witness  must  have 

3 State  v.  Justus,  11  Ore.  178.  handled   the  weapons  must   lie  con- 

4  Com.  v.  Piper,  120  Mass.  185;  Boyd  aidered.  Com.  r.  Twitchell,  1  Brewst. 
v.  State,  14  Lea  (Tenn.)  161,  169-174;     (Pa.)  551,  604,  605. 


286 


CRIMINAL    EVIDENCE. 


§   233 


clothing  worn  by  the  deceased,  the  same  weapon  being  em- 
ployed.1 An  expert  may  be  allowed  to  conduct  an  experiment 
in  court  to  illustrate  or  emphasize  his  testimony,  if  it  appears 
independently  that  the  exact  conditions  alleged  to  have  existed 
are  reproduced  before  the  jury.2 


1  Sullivan  v.  Com.,  93  Pa.  St.  284, 
297,  13  Phila.  Rep.  410,  419.  Cf. 
Evans  v.  State,  109  Ala.  11, 19  So.  Rep. 
535.  On  a  trial  for  poisoning  a  horse 
a  witness  was  permitted  to  state  that, 
after  the  horse  died,  he  gave  some  of 
the  contents  of  its  stomach  to  a  hen, 
which  died  at  once.  State  v.  Isaacson 
(S.  Dak.,  1896),  65  N.  W.  Rep.  430. 
An  experiment,  otherwise  admissible, 
is  not  to  be  excluded  because  the 
defendant  was  not  present  when  it 
was  made.  Moore  v.  State,  96  Tenn. 
209,  33  S.  W.  Rep.  1046. 

2  State  v.  Smith,  49  Conn.  376;  Si- 
berry  v.  State,  133  Ind.  677,  33  N.  E. 
Rep.  681 ;  State  v.  Fletcher,  24  Ore. 
295,  33  Pac.  Rep.  575 ;  People  v.  Hope, 
62  Cal.  291.  In  case  the  experiment 
will  consume  some  time  it  is  not  an 
abuse  of  judicial  discretion  for  the 
court  to  refuse  to  permit  an  experi- 
ment to  be  made  in  open  court.  Peo- 
ple v.  Levine,  85  Cal.  39,  24  Pac.  Rep. 
631.    The    matter    is  largely  in  the 


judicial  discretion.  Polin  v.  State,  14 
Neb.  540.  In  the  very  recent  case  of 
the  People  v.  Luetgert,  the  trial  of 
which  in  the  city  of  Chicago,  111.,  has 
just  terminated  in  a  disagreement  of 
the  jury,  the  relevancy  and  propriety 
of  evidence  of  experiments  conducted 
out  of  court  received  much  attention. 
The  prosecution  alleged  that  the  pris- 
oner, after  killing  his  wife,  immersed 
her  body  for  a  lengthy  period  in  a 
chemical  preparation  contained  in  a 
vat  located  in  a  factory  of  which  he 
was  the  proprietor,  the  effect  of  which 
was  to  dissolve  and  disintegrate  it  to 
such  an  extent  that  only  a  few  small 
pieces  of  bone  were  subsequently 
found  intact.  The  accused  was  per- 
mitted to  offer  in  evidence  the  results 
of  an  experiment  made  by  immersing 
the  body  of  a  woman  in  a  chemical 
preparation  admitted  to  be  the  same 
as  that  alleged  to  have  been  used  by 
the  accused. 


CHAPTER  XIX. 


THE    IMPEACHMENT    OF    WITNESSES. 


§  234.   Impeachment  of    witnesses — 
General  rule. 

235.  The  impeachment  of  necessary 

witnesses  and  those  unex- 
pectedly hostile. 

236.  Impeachment  of  adverse  wit- 

nesses hy  showing  bad  repu- 
tation for  veracity  —  Belief 
under  oath. 

237.  Impeachment  by  showing  the 

general  bad  character  of  the 
witness  aside  from  truthful- 
ness. 

238.  Impeachment  of  the  adverse 

witness  by  showing  contra- 
dictory statements  —  Neces- 
sity for  foundation. 

239.  Impeachment  by  contradictory 

affidavits,  depositions  and 
other  writings. 

240.  Contradictory  writings  must  be 

shown  to  the  witness  who  is 
to  be  impeached. 


§241.  Contradiction  of  irrelevant 
matters  not  permissible — 
Proof  of  confirmatory  state- 
ments. 
242.  Previous  silence  as  impeach- 
ment. 

Relevancy  of  evidence  to  show 
the  general  reputation  for 
truthfulness  of  a  witness  who 
has  been  impeached. 

Limitations  upon  the  right  to 
ask  questions  which  disgrace 
the  witness. 

Impeachment  by  showing  so- 
cial connections,  occupation 
and  manner  of  living. 

When  and  how  previous  im- 
prisonment or  conviction  of 
crime  may  be  shown. 

Incriminating  questions. 

Interest  and  bias  of  the  wit- 
ness as  impeachment. 


243. 


244. 


245. 


246. 


247. 

248. 


§  234.  Impeachment  of  witnesses — General  rule. — A  party  in 
whose  behalf  a  witness  is  called  to  testify  will  not,  as  a  general 
rule  (to  which,  however,  there  are  some  exceptions),  be  per- 
mitted to  impeach  his  veracity  or  credibility. 

The  law  presumes  that  he  is  acquainted  with  the  character 
of  his  own  witness,  and  knows  before  he  calls  him  whether  he 
is  a  truthful  man  or  the  reverse.  So,  too,  the  party  must  be 
thoroughly  aware  whether  or  no  his  witness  has  any  knowledge 
of  the  facts  in  issue,  and  if  he  calls  him  to  prove  any  particu- 
lar fact  he  is  concluded  by  his  testimony  and  can  not  contra- 

(287) 


288  CRIMINAL  EVIDENCE.  §  235 

diet  him  as  to  that  fact.  Hence,  applying  this  rule  to  criminal 
prosecutions,  it  can  not  be  presumed  that  the  state's  attorney, 
in  the  performance  of  his  duty  to  secure  the  punishment  of 
criminals,  will  stoop  to  offer  untruthful  testimony  for  that  pur- 
pose. Nor  can  we  with  justice  suppose  that  the  accused,  whom 
the  law  presumes  innocent  until  his  guilt  is  proved  beyond  a 
reasonable  doubt,  contemplates  or  intends  the  willful  introduc- 
tion of  perjured  testimony.  Hence,  the  mere  calling  of  a 
witness  by  either  side  is,  in  law,  an  implied  representation  that 
the  witness  is  worthy  of  belief. 

The  rule,  as  thus  stated,  is  applicable  to  exclude  direct  im- 
peachment alone.  That  is,  the  party  can  not  show  that  the 
reputation  of  his  own  witness  for  veracity  is  bad,  nor  prove 
that  he  made  contradictory  statements  out  of  court,  nor  contra- 
dict him,  solely  for  the  purpose  of  impeachment.  The  party 
may  be  compelled  by  the  exigencies  of  the  case  to  impeach  his 
witness  incidently  and  indirectly.  He  may  have  to  do  this  or 
lose  the  opportunity  of  proving  relevant  facts  which  are  vitally 
important  in  their  bearing  upon  the  guilt  or  innocence  of  the 
accused.  The  law  does  not  forbid  the  proof  of  any  relevant 
fact  which  may  have  a  tendency  to  show  the  truth  merely  be- 
cause the  proof  of  that  fact  indirectly,  though  positively,  con- 
tradicts, and  thus,  of  necessity,  discredits  and  impeaches  the 
testimony  of  some  other  witness  to  that  or  some  other  relevant 
fact.1  Nor  is  it  material  that  the  result  of  such  an  incidental 
conflict  of  evidence  is  to  show  that  one  or  the  other  of  the  wit- 
nesses is  totally  unworthy  of  credit. 

§  235.  The  impeachment  of  necessary  witnesses  and  those 
unexpectedly  hostile. — If  either  party  is,  by  law,  under  the 
circumstances  of  the  case,  compelled  to  call  a  particular  person 
to  prove  any  fact,  the  party  calling  him  can  not  be  said  to 
vouch  for  this  witness  that  the  law  forces  upon  him.  Accord- 
ingly, a  party  who  is  compelled  to   prove  the  execution  of  a 

United  States  v.  "Watkins,  3  Cranch  Ga.   754.     For    a    discussion    of    the 

C.  C.  441 ;  Chism  v.  State,  70  Miss,  double  meaning    of    the  word  "  im- 

742,12  So.   Rep.  852;  State  v.  Cum-  peach,"  see  Underhill on  Evidence,  p. 

mins,  76  Iowa  133;  Dixon  v.  State,  86  500,  §  347. 


§  235  THE    IMPEACHMENT    OF    WITNESSES.  289 

writing  by  producing  the  subscribing  witnesses  under  a  statute 
requiring  this  proof  is  not  concluded  by  the  answers  of  such 
witnesses.  If  the  subscribing  witnesses  deny  their  signatures 
or  their  presence  at  the  execution,  the  party  who  called  them 
may  directly  contradict  them  by  other  witnesses,  or  their  rep- 
utation for  veracity  may  be  impeached.1  Another  exception  to 
the  rule  forbidding  a  party  to  contradict  his  own  witness  occurs 
where  the  witness  is  treacherous  and  proves  unexpectedly  hos- 
tile in  his  testimony  upon  the  stand.  In  such  circumstances 
it  would  be  most  unfair  to  the  accused,  if  the  witness  has  been 
called  in  his  behalf,  to  permit  him  to  be  convicted  merely  because 
a  witness  on  whom  he  has  depended  for  exculpation  has  be- 
trayed him  at  a  critical  moment  in  his  defense.  The  witness 
may  have  been,  or  may  be  when  he  testifies,  in  the  secret  em- 
ployment or  under  the  control  of  a  prosecuting  attorney  who 
may  have  permitted  professional  zeal  to  overcome  his  sense  of 
justice  and  right,  or  he  may  be  a  secret  enemy  of  the  prisoner, 
desirous  of  revenging  himself  in  this  underhand  manner.  On 
the  other  hand,  the  consciousness  existing  in  the  mind  of  the 
accused  that  he  is  guilty  may,  and  no  doubt  frequently  does, 
impel  him  to  practice  such  an  artifice  by  which  the  case  against 
him  will  unexpectedly  be  broken  down. 

A  man  who  deliberately  engages  in  such  an  enterprise,  with 
the  purpose  and  intention  of  giving  evidence  when  on  the 
stand  by  which  the  party  who  calls  him  will  be  routed  and 
confounded,  may  have  stated  the  facts  differently  out  of  court 
for  the  express  purpose  of  luring  the  party  into  calling  him. 
If  he  then  gives  a  widely  variant  version  of  relevant  facts,  to 
the  surprise  of  the  party  in  whose  favor  he  was  called,  his 
extra-judicial  declarations  may  be  proved  solely  for  the  pur- 
pose of  impeachment. 

The  party  must  first  show  that  the  evidence,  as  given,  has 
taken  him  by  surprise.     The  witness  may  then  be  asked  if  he 

1  Shorey  v.  Hussey,  32  Me.  579,  581 ;     cited  in  Underhill  on  Evidence,  p. 
Orser  v.  Orser,  24  N.  Y.  51 ;  Foster  v.    502,  §  348. 
Dickerson,    64    Vt.    233,    and    cases 
19— Cr.  Ev. 


290  CRIMINAL  EVIDENCE.  §  236 

has  made  contradictory  statements  out  of  court,  the  times, 
places  and  circumstances  of  the  statements  being  described  to 
him  in  detail.1  But  the  fact  that  a  witness,  when  on  the 
stand,  seems  ignorant  of  some  or  all  the  facts  he  was  expected 
to  know  will  not  permit  the  examining  party  to  prove  that  he 
made  the  desired  statements  out  of  court.2  In  order  that  one's 
own  witness  may  be  contradicted,  mere  silence  or  ignorance 
on  his  part  is  not  enough.  The  witness  must  testify  expressly, 
and  in  terms  to  facts  which  are  in  direct  contradiction  to  his 
prior  extra-judicial  statements.3 

The  rule  by  which  one's  own  witness,  who  unexpectedly 
proves  hostile,  may  be  impeached  by  proving  contradictory 
statements  made  out  of  court  has  been  confirmed  by  statute  in 
some  states.  But  such  statutes,  being  somewhat  in  deroga- 
tion of  common  law  principles,  usually  receive  a  strict  con- 
struction.4 All  the  circumstances  of  time,  place  and  person 
ought  to  be  detailed  to  the  witness.  It  is  not  enough  merely 
to  ask  him  if  he  made  contradictory  statements  to  a  particular 
person,5  without  stating  where  and  when  they  were  made. 

§  236.  Impeachment  of  adverse  witness  by  showing  bad  repu- 
tation for  veracity — Belief  under  oath. — Independent  evidence 
tending  directly  to  show  that  a  witness  possesses  a  bad  reputa- 
tion for  veracity  is  always  admissible  to  impeach  an  adverse 
witness  after  he  has  been  examined  in  chief  by  the  party  call- 


1  Conway  v.  State,  118  Ind.  482,  488;  opinion  of  the  court  in  Putnam  v. 
Rhodes  v.  State,   128  Ind.   189,   192;  United  States,  162  U.  S.  687. 
Williams  v.  State,  25  Tex.  App.   76,  2  Adams  v.  State,  34  Fla.  185 ;  Chism 
90 ;  Schuster  v.  State,  80  Wis.  107, 117 ;  v.  State,  70  Miss.   742;    12  So.   Rep. 
State  v.  Tall,  43  Minn.  273,  275 ;  Peo-  852;  People  v.  Mitchell,  94  Cal.  550. 
pie  v.   Sweeney,   55  Mich.   586,  591;  3  Gibson  v.  State,  34  Tex.  Cr.  Rep. 
People  v.  Jacobs,  49  Cal.  384 ;  State  v.  218,  29  S.  W.  Rep.  471. 
Sortor,  52  Kan.  531,  34  Pac.  Rep.  1036.  4  Williams  v.  State,  25  Tex.  App.  76, 
For  example,  a  witness  for  the  state,  7  S.  W.  Rep.  661 ;  Blackburn  v.  Com., 
proving  hostile,  may  be   asked  if  he  12  Bush  (Ky.)  181,  184,  185;  Under- 
did not  make  contradictory  statements  hill  on  Evidence,  p.  503,  note  3. 
before    the    grand    jury.     People    v.  sCom.    v.    Thyng,    134   Mass.   191; 
O'Neill  (Mich.,  1896),  65  N.  W.  Rep.  People  v.  Bushton,  80  Cal.  160;  Un- 
540.      But   see    contra,    the    divided  derhill  on  Evidence,  §  342. 


§236  TIIK    [MPBACHMENT    OF    WITNESSES.  291 

ing  him.1  The  impeaching  witness  ought  to  be  called  from 
among  those  persons  who  are  resident  near  the  domicile  of  the 
witness  to  be  impeached.  He  must  first  be  asked  if  he  knows 
the  general  reputation  of  the  witness,  and  if  he  does  not  know 
it  lie  is  incompetent.  If  the  court  believes  he  knows  the 
reputation  of  the  witness  for  veracity  he  may  then  state  what 
that  reputation  is.2  Evidence  of  reputation  for  truthfulness, 
or  the  reverse  is  not  admissible,  unless  it  relates  to  the  reputa- 
tion of  the  witness  which  is  prevalent  in  the  locality  where  he 
resides.3  The  reputation  proved  must  be  recent.  The  fact 
that  a  witness  was  reputed  to  be  truthful  when  he  was  a  boy 
by  no  means  tends  to  show  that  he  is  credible,  when,  as  a  man, 
he  testifies  upon  the  witness  stand.  But  evidence  of  good  or 
bad  reputation  existing  two  or  three  years  prior  to  the  trial  is 
admissible.  It  can  not  reasonably  be  presumed  that  a  man  of 
mature  age  and  settled  habits  would  acquire  a  new  reputation 
in  that  comparatively  short  time.4 

The  evidence  of  the  impeaching  witness  must  be  confined 
strictly  to  the  general  reputation  of  the  witness  for  veracity, 
i.  <?.,  to  what  he  has  heard  people  say  regarding  this  trait  of 
character.  He  will  not  be  allowed  to  prove  the  commission  of 
specific  acts  of  untruthfulness  or  other  bad  conduct.5  No  man 
can,  with  fairness,  be  required  without  warning  to  defend  or 
to  disprove  particular  actions,  perhaps,  long  since  forgotten  by 

lHoge».  People,  117  111.  35.  5People  r.   O'Brien,  96    Cal.   171; 

2  State  v.  Johnson,  41  La.  An.  574;  People  v.  Ryan,  55  Hun  (N.  Y.)  214; 
People  v.  Markham,  64  Cal.  157 ;  Cole  State  v.  Rogers,  108  Mo.  202,  18 
v.  State,  59  Ark.  50;  Spies  v.  People,  S.  W.  Rep.  976;  State  v.  Barrett,  40 
122  111.  1.  Minn.  65;  People  v.  Wolcott,51  Mich. 

3  Brown  v.  United  States,  164  TJ.  S.  612;  Randall  v.  State,  132  Ind.  539, 
221,17S.Ct.  Rep.  33;  State  v.  Rugan,5  542;  Conley  r.  Meeker,  85  N.  Y.  618; 
Mo.App. 592;  States.  Beal.68  Ind.'345,  State  v.  Gesell,  124  Mo.  531,  27  S.  W. 
346  ;Mershont>.  State,  51  Ind.  14;  State  Rep.  1101;  McArthur  v.  State,  59  Ark. 
v.  Kirkpatrick,  63  Iowa  554,  559 ;  State  431.  The  witness  may  testify  that  the 
v.  Johnson,  41  La.  An.  574, 577;  Jack-  man's  neighbors  said  nothing  as  to 
son  v.  State,  78  Ala.  471 ;  Combs  v.  his  general  reputation  for  telling  the 
Com.,  93  Ky.  313,  29  S.  W.  Rep.  734.  truth.    Their  silence  may  be  evidence 

4  Davis  ».  Com.,  95  Ky.  19,21,  23  that  his  reputation  was  uniformly 
S.  W.  Rep.  585;  Mynatt  v.  Hudson,  66  good.  Conrad  v.  State,  132  Ind.  254, 
Tex.  66.  259. 


292 


CRIMINAL    EVIDENCE. 


§  237 


him.1  It  is  not  necessary  that  the  impeaching  witness  should 
be  personally  acquainted  with  the  witness  whose  credibility  he 
attacks.2  He  may  be  cross-examined  as  to  the  sources  from 
which  he  has  derived  his  knowledge  of  the  reputation  which 
he  has  testified  to,  and  he,  in  his  turn,  may  have  his  reputation 
investigated,3 

A  witness  who  is  called  to  prove  the  bad  reputation  of  an- 
other may,  after  he  has  testified  to  that  reputation,  be  asked  if 
he  would  believe  the  witness  under  oath.4  Though  the  reputa- 
tion of  the  witness  is  shown  to  be  bad,  his  credibility  is  still  a 
question  for  the  jury.  The  fact  that  they  may  believe  him  to 
have  a  bad  reputation  does  not  justify  an  instruction  that  they 
must  disregard  all  his  evidence.5 

§  237.  Impeachment  by  showing  the  general  bad  character 
of  the  witness  aside  from  truthfulness. — A  few  authorities  re- 
ject all  evidence  to  prove  the  good  or  bad  character  of  a  witness, 
except  so  far  as  it  is  confined  to  his  reputation  for  truthfulness, 
or  the  reverse.6  If  the  witness  possesses  no  knowledge  of  that 
particular  trait  of  character  he  is  incompetent.     But  the  ma- 


1  See  Underbill  on  Evidence,  page 
506,  n.  2.  It  may  be  sbown  that  the 
witness  was  intoxicated  when  he  ob- 
served the  events  which  he  describes 
on  the  stand.  But  if,  though  intoxi- 
cated, his  evidence  is  corroborated,  or 
if  his  recollection  appears  to  be  clear 
and  distinct  he  ought  to  be  believed. 
State  v.  Castello,  62  Iowa  404,  407,  16 
N.  W.  Rep.  605. 

2 State  v.  Turner,  36  S.  Car.  534. 

3  State  v.  Perkins,  66  N.  Car.  126; 
Nelson  v.  State,  32  Fla.  244,  13  So. 
Rep.  361. 

4  Mayes  w.State,33  Tex.Cr.App.33,  24 
S.W.Rep.421 ;  Ware  t>.  State  (Tex.,  1897), 
38  S.  W.  Rep.  198 ;  State  v.  Christian, 
44  La.  An.  9.50,  952;  State  v.  Boswell, 
2  Dev.  (N.  Car.)  209,  211 ;  Hudspeth  v. 
State,  50  Ark.  534.  For  civil  cases  see 
TJnderhill  on  Evidence,  page  505. 
Contra,  Walton  v.  State,  88  Ind.9, 19; 


State  v.  Mills,  15  Wash.  St.  534, 46  Pac. 
Rep.  1047 ;  Cline  v.  State,  51  Ark.  140, 
10  S.  W.  Rep.  225.  But  the  witness 
will  not  generally  be  permitted  to 
state  that  he  would  not  believe  a  per- 
son under  oath,  unless  he  knows  that 
person's  reputation  for  veracity,  and 
is  able  to  testify  that  his  reputation  is 
bad.  Spies  v.  People,  122  111.  1,  208. 
See,  also,  Mitchell  v.  State,  94  Ala. 
68. 

5  Pentecost  v.  State,  107  Ala.  81,  18 
So.  Rep.  146. 

6  State  v.  Clawson,  30  Mo.  App.  139 ; 
State  v.  Coffey,  44  Mo.  App.  455 ;  State 
v.  Jackson,  44  La.  An.  160, 162 ;  Briggs 
v.  Com.,  82  Va.  554 ;  People  v.  Abbott, 
97  Mich.  484,  56  N.  W.  Rep.  862 ;  Com. 
v.  Lawler,  12  Allen  (Mass.)  585;  State 
v.  Perkins,  66  N.  C.  126;  Holmes  v. 
State,  88  Ala.  26. 


§  238  THE    IMPEACHMENT    OF    WITNESSES. 

jority  of  the  cases  allow  greater  latitude.  In  most  cases  evi- 
dence involving  the  whole  moral  character  of  the  witness  will 
he  received  upon  the  reasonable  theory  that  a  man  who  is  ad- 
dicted to  vicious  habits,  or  who  is  prone  to  commit  immoral 
acts,  may  be  presumed  to  have  lost  respect  for  truth,  and  to 
be  ready  to  perjure  himself  when  it  is  to  his  interest  to  do  so.1 

§  238.  Impeachment  of  the  adverse  witness  by  showing  con- 
tradictory statements — Necessity  for  foundation. — The  witness 
whom  it  is  desired  to  impeach  may,  upon  his  cross-examina- 
tion, be  asked  if  he  has  not  made  statements  out  of  court  rele- 
vant to  the  guilt  of  the  accused  which  are  inconsistent  with  or 
contradictory  of  his  testimony  given  on  direct  examination. 
All  the  circumstances  attendant  upon  the  extra-judicial  decla- 
rations must  be  embodied  in  the  question.  If  he  does  not  ad- 
mit that,  upon  the  particular  occasion  designated,  he  made  the 
statement,  it  may  be  proved  that  he  did  in  fact  make  it.2 

The  same  course  may  be  followed  with  a  witness  upon  his 
direct  examination  in  case  he  proves  hostile  to  the  party  call- 
ing him.  But  in  either  case  it  is  always  absolutely  essential 
in  fairness  to  the  witness  to  lay  a  foundation  for  contradicting 
him  by  bringing  to  his  attention  in  the  question  put  to  him, 

1  Wachstetter  v.  State,  99  Ind.  290,  a  prostitute  may  also  be  shown.  Peo- 
298 ;  Boyle  v.  State,  105  Ind.  469,  475 ;  pie  v.  Mills,  94  Mich.  630;  Paul  v. 
McTyier  v.  State,  91  Ga.  254,  18  S.  E.  Paul,37  N.  J.  Eq.23,25.  While  the  fact 
Rep.  140;  State  v.  Hart,  67  Iowa  142,  that  a  witness  is  of  very  bad  moral 
25  N.  W.  Rep.  99;  State  v.  Kirkpat-  character  may  call  for  a  careful  scru- 
rick,  63  Iowa  554;  State  v.  McClin-  tiny  and  consideration  of  his  testi mo- 
tic,  73  Iowa  603;  State  v.  Froelick,  ny,  the  jury  are  not  bound  in  law,  for 
70  Iowa  213;  Gilliam  v.  State,  1  Head,  that  reason,  to  disregard  it  if  they  be- 
(Tenn.)  39;  State  v.  Miller,  93  Mo.  lieve  it  is  in  itself  credible ;  or  if  hav- 
263 ;  State  v.  Boswell,  2  Dev.  (N.  Car.)  ing  a  doubt  of  his  credibility  they  be- 
209,  210;  State  v.  Jackson,  44  La.  An.  lieve  he  is  corroborated  by  the  circum- 
160,  162 ;  Mitchell  v.  State,  94  Ala.  68;  stances  or  by  the  credible  testimony  of 
Com.  v.  Lee,  143  Mass.  100;  People  v.  other  witnesses.  People  r.  Mills,  94 
Webster,  139  N.  Y.  73,  34  N.  E.  Rep.  Mich.  630;  Duncan  v.  State,  97  Ga. 
730;  People  r.  Harrison,  93  Mich.  594,  180,  25  S.  E.  Rep.  182;  State  v.  Van 
597;  Crump  r,  Com.  (Ky.,  1S93),  20  Vliet,  92  Iowa  476,  66  N.  W.  Rep.  748; 
S.  W.  Rep.  390;  Hauk  v.  State  (Ind.,  Douglass  v.  State  (Tex.,  1896),  33  S. 
1897),  46  N.  E.  Rep.  127;  Henderson  W.  Rep.  228;  Schanzenbachr.Brough, 
v.  State  (Tex.,  1897),  39  S.  W.  Rep.  58  111.  App.  526. 
116.    The  fact  that  a  female  witness  is  2  State  v.  Lewis,  44  La.  An.  958. 


294 


CRIMINAL    EVIDENCE. 


§238 


clearly  and  distinctly,  all  the  circumstances  of  time,  place 
and  person  under  which  the  contradictory  statements  were 
made.1  By  having  his  attention  called  directly  to  the  exact  cir- 
cumstances under  which  it  is  alleged  the  contradictory  or  in- 
consistent statement  was  uttered,  the  witness  is  protected  from 
an  unfair  surprise.  He  has  the  right  to  explain  the  contradic- 
tion. When  his  memory  is  aroused  and  refreshed  by  these 
details  he  may  be  able  to  show  that  he  was  honestly  mistaken 
on  the  former  occasion,  or  that  the  persons  then  present  mis- 
understood him.  The  impeached  witness  ought  to  be  permit- 
ted, in  giving  his  evidence,  to  state  any  facts  which  will  ex- 
plain or  reconcile  the  seemingly  inconsistent  utterances  or  show 
their  relation  to  one  another  and  the  meaning  and  purpose  of 
each.2 

If  the  witness  declares  he  does  not  remember  making  the 
contradictory  statements,  he  may  be  contradicted  at  once,  with- 
out further  foundation  for  their  introduction.3 


-People  v.  Chin  Hane,  108  Cal.  597, 
41  Pac.  Rep.  697;  Hester  v.  State,  103 
Ala.  83,  15  So.  Rep.  857;  People  v. 
Bosquet  (Cal.,  1897),  47  Pac.  Rep. 
879 ;  Com.  v.  Mosier,  135  Pa.  St.  221 ; 
Hoge  v.  People,  117  111.  35;  Aneals  v. 
People,  134  111.  401;  Carpenter  v. 
State,  62  Ark.  286,  36  S.  W.  Rep.  900; 
Klug  v.  State,  77  Ga.  734;  Bruce  v. 
State,  31  Tex.  Cr.  App.  590;  Mont- 
gomery v.  Knox,  23  Fla.  595 ;  State  v. 
Turner,  36  S.  Car.  534;  State  v.  Good- 
bier,  48  La.  An.  770 ;  State  v.  Delaneu- 
ville,  48  La.  An.  502;  State  v.  Jones, 
44  La.  An.  960,  962;  Jones  v.  State, 
65  Miss.  179;  State  v.  McLaughlin,  44 
Iowa  82;  Kent  v.  State,  42  Ohio  St. 
426;  State  v.  Glynn,  51  Vt.  577;  State 
v.  Baldwin,  36  Kan.  1;  States.  Hun- 
saker,  16  Ore.  497 ;  Cotton  v.  State,  87 
Ala.  75;  State  v.  Freeman,  43  S.  Car. 
105;  Com.  v.  Smith,  163  Mass.  411. 
Cf.  contra,  People  v.  Shaw,  111  Cal. 
171,  43  Pac.  Rep.  593.  See,  also, 
cases  in  Underhill  on  Evidence,   p. 


508,  note  1.  The  witness  may  be  con- 
tradicted by  his  testimony  given  on  a 
prior  trial  of  the  same  indictment  if 
he  asserts  that  his  present  testimony 
is  the  same  as  that  previously  given, 
Hudson  v.  State,  28  Tex.  App.  323; 
Brown  v.  State,  76  Ga.  623;  or  by  his 
testimony  at  the  coroner's  inquest. 
State  v.  Merriman,  34  S.  Car.  576,  12 
S.  E.  Rep.  619;  Moran  v.  People  (111., 
1897),  45  N.  E.  Rep.  230;  State  v.  Tay- 
lor, 136  Mo.  66,  37  S.  W.  Rep.  907; 
Williford  v.  State  (Tex.,  1897),  37  S. 
W.  Rep.  761;  State  v.  O'Brien,  18 
Mont.  1,  43  Pac.  Rep.  1091,  or  by  his 
deposition  taken  before  the  examin- 
ing magistrate,  People  v.  Butler,  55 
Mich.  408,  409,  21  N.  W.  Rep.  385,  or 
the  grand  jury.  Bressler  v.  People, 
117  111.  422. 

2  Bressler  v.  People,  117  111.  422. 

8  Payne  v.  State,  60  Ala.  80 ;  Wag- 
ner v.  State,  116  Ind.  181,  184;  Bill- 
ings v.  State,  52  Ark.  303;  Levy  v. 
State,  28  Tex.  App.  203,  12  S.  W.  Rep. 


§  239  THE    IMPEACHMENT    OF    WITNESSES.  295 

Both  the  admissions  and  the  confessions  of  the  accused  are 
admissible  against  him  as  direct  evidence  of  guilt,  and  not 
merely  to  contradict  him  when  he  testifies  as  a  witness.  Hence, 
the  fact  that  he  testifies  as  a  witness  does  not  render  it  neces- 
sary to  lay  a  foundation  before  introducing  any  of  his  contra- 
dictory statements,  which  are  in  form  or  substance  confessions 
and  admissions,  as  in  the  case  of  other  witnesses  who  are  to  be 
impeached  by  contradiction.1  On  the  other  hand,  if  the  ac- 
cused is  a  witness,  his  confession  is  not  admissible  as  a  contra- 
dictory statement  to  impeach  him  if  it  would  not  be  admissible 
as  a  confession.2 

§  239.  Impeachment  by  contradictory  affidavits,  depositions 
and  other  writings. — The  rules  governing  impeachment,  by 
contradictory  statements,  as  above  set  forth,  are  equally  appli- 
cable whether  the  inconsistent  declarations  are  oral  or  are  con- 
tained in  affidavits  and  depositions,3  or  in  publications  by  the 
witness  on  the  subject  to  which  his  testimony  relates.4 

Thus  the  accused,  when  testifying,  or  any  witness  called  in 
his  behalf,  may  be  contradicted  by  the  evidence  as  stated  by 
him  in  the  affidavits  which  were  made  and  used  by  the  accused 
upon  a  motion  for  a  continuance  or  postponement.5 

Contradictory  statements  contained  in  affidavits,  depositions 
and  other  formal  judicial  documents  are  obviously  to  be  con- 

596;  Fuller  v.  State,  30  Tex.  App.559;  State  v.  Cater  (Iowa,  1897),  69  N.  W. 

Smith  v.  State  (Tex.),  20  S.  W.  Rep.  Rep.  880. 

554.  *  Hartford  v.  State,  96  Ind.  461,  468. 

1  Klug  v.  State,  77  Ga.  734 ;  Lewis  v.  5  Com.  v.  Starr,  4  Allen  (Mass.)  301, 
State,  91  Ga.  168,  16  S.  E.  Rep.  986;  302;  Pledger  v.  State,  77  Ga.  242,  3 
State  v.  Forsythe  (Iowa,  1897),  68  N.  S.  E.  Rep.  320;  State  v.  Hayes,  78  Mo. 
W.  Rep.  446.  307;  People  v.  Sweeney,  55  Mich.  586, 

2  State  v.  Barrett,  40  Minn.  65,  74,  590.  In  Behler  v.  State,  112  Ind.  140, 
41  N.  W.  Rep.  459.  See  TJnderhill  on  13  N.  E.  Rep.  272,  the  court  says: 
Evidence,  p.  509,  note  4.  "There  is  nothing  giving  to  the  affi- 

8Gilyard  v.  State,  98  Ala.  59,  13  So.  davits  fora  continuance  of  a  privilege, 

Rep.  891 ;  State  v.  O'Brien,  18  Mont,  nor  is  there  anything  which  impresses 

1,  43  Pac.  Rep.  1091 ;  United  States  v.  upon  them  any  compulsory  or  confi- 

Taylor,  35  Fed.  Rep.  484.     See,  also,  dential   feature.    The    affidavit    is    a 

Sullivan  v.  Jefferson,     etc.,    Co.  133  paper  belonging  to  the  files,  public  in 

Mo.  1,  34    S.  "W.  Rep.  566;   Fein  v.  its  nature  and  freely  executed." 
Covenant    Assn.,    60    111.    App.  274; 


296  criminal  evidencp:.  §  240 

sidered  from  a  different  point  of  view,  so  far  as  their  impeach- 
ing character  is  concerned,  than  oral  statements. 

In  the  case  of  contradictory  writings,  it  is  manifestly  unfair 
to  the  witness  to  confront  him  with  an  affidavit  or  other  paper 
couched  in  formal  and  technical  phraseology.  The  language 
of  the  document  is  usually  not  his.  The  affidavit  or  other  legal 
instrument  is  usually  prepared  by  the  clerk  of  the  court ;  and, 
though  the  affidavit  or  deposition  may  have  been  read  over  to 
the  affiant  before  he  signed  it,  by  the  person  whom  the  witness 
trusted,  or  whose  duty  it  was  to  frame  his  ideas  in  proper 
words,  he  may  have  most  likely  wholly  misunderstood  the  true 
meaning  of  a  writing  couched  in  such  technical,  and  to  him 
novel  and  unusual,  language.1 

These  considerations  ought  to  be  kept  in  view  when  the  affi- 
davit or  deposition  of  the  complaining  witness,  taken  down  by 
the  clerk  of  the  court,  as  a  basis  for  issuing  a  warrant  for  the 
arrest  of  the  accused,  is  employed  to  contradict  the  witness  at 
the  examination  before  the  magistrate  or  at  the  trial.2 

§  240.  Contradictory  writings  must  be  shown  to  the  witness 
who  is  to  be  impeached. — The  writing  by  which  it  is  proposed 
to  contradict  the  witness  must  be  shown  him  so  that  he  may 
read  it,  or  it  may  be  read  to  him.  He  must  be  asked  if  he 
wrote  it  or  signed  it,  and  his  attention  must  then  be  called  to 
the  inconsistencies.3  If  he  admits  that  he  wrote  or  signed  it, 
the  whole  ought  to  be  read  to  the  jury  as  the  best  evidence   of 

1  Johnston  v.  Todd,  5  Beav.  597, 600.  Iowa  748,  751,  30  N.W.  Rep.  501 ;  State 
zCom.  v.  Snee,  145  Mass.  351,  14  v.  Baker  (Mo.,  1897),  37  S.  W.  Rep. 
N.  E.  Rep.  157.  810.  The  testimony  of  a  witness, 
3  Gemmill  v.  State  (Ind.,  1896),  43  taken  before  a  magistrate,  or  at  a 
N.  E.  Rep.  909;  Floyd  v.  State,  82  Ala.  coroner's  inquest  reduced  to  writing 
16;  People  v.  Ching,  74  Cal.  389;  and  signed  by  the  witness,  is  not  ad- 
Cooper  v.  State,  90  Ala.  641 ;  State  v.  missible  unless  it  is  first  shown  to 
Crow,  107  Mo.  341 ;  State  v.  Steeves,  29  him  and  his  attention  called  to  the  in- 
Ore.  85,  43  Pac.  Rep.  947 ;  State  v.  Call-  consistencies.  Simmons  v.  State,  32 
gari,  41  La.  An.  578,581,  7  So.  Rep.  Fla.  387,  13  So.  Rep.  896;  State  v. 
130 ;  Cole  v.  State,  59  Ark.  50 ;  Gunter  O'Brien,  18  Mont.  1,  43  Pac.  Rep.  1091. 
v.  State,  83  Ala.  96 ;  State  v.  Leeper,  70 


§241 


THE     IMl'EACIIMKNT    OK    WITNESSES. 


297 


what  the  writing  contains.     If  he  denies  that  he  is  the  author, 
the  fact  that  he  wrote  it  may  be  proved  by  proper  evidence.1 

§  241.  Contradiction  of  irrelevant  matters  not  permissible — 
Proof  of  confirmatory  statements. — The  rules  above  discussed, 
regulating  the  introduction  of  inconsistent  declarations  for  the 
purpose  of  contradicting  a  witness,  permit  him  to  be  contra- 
dicted only  as  regards  matters  relevant  to  the  guilt  or  inno- 
cence of  the  prisoner.  Where  the  witness  is  confronted  witli 
contradictory  or  inconsistent  declarations  made  out  of  court 
and  pertaining  solely  to  irrelevant  matters,  and  denies  that  he 
is  their  author,  his  replies  are  conclusive.  He  can  not  be  con- 
tradicted on  that  point  by  the  party  seeking  to  impeach  him.2 
The  cases  are  not  harmonious  upon  the  question  whether, 
after  it  has  been  shown  that  a  witness  has  made  contradictory 
statements  out  of  court,  it  is  permissible  to  prove  upon  his  re- 
direct examination  that  he  has  made  other  statements  which 
are  consistent  with  and  confirmatory  of  his  testimony.  The 
majority  of  the  cases  maintain  the  affirmative.3  When,  how- 
ever, it  appears  that  the  witness  is  probably  biased  in  favor  of 
the  party  calling  him  because  of  his  relation  to  him,  or  on  ac- 


1  For  numerous  civil  cases  illustrat- 
ing this  rule  see  Underbill  on  Ev.,  pp. 
510-512. 

2  Crawford  v. State  (Ala., 1897), 21  So. 
Rep.  214 ;  State  v.  Conerly,  48  La.  An. 
1561,21  So.  Rep.  192;  Wilson  v.  State 
(Tex.,  1897),  38  S.  W.  Rep.  610;  Rey- 
nolds v.  State  (Ind.,  1897),  46  N.  E. 
Rep.  31 ;  State  v.  Brown  (Iowa,  1897), 
69  N.  W.  Rep.  277;  Carter  v.  State,  36 
Neb.  481,  54  N.  W.  Rep.  853;  Hill  v. 
State,  91  Tenn.  521,  19  S.W.  Rep.  674; 
State  v.  Morris,  109  N.  Car.  820 ;  Corn.  v. 
Jones.  155  Mass.  170,  171  ;  Com.  v. 
Fitzpatrick,  140  Mass.  455;  Welch  v. 
State,  104  Ind.  347,  351  ;  Ford  v.  State, 
112  Ind.  373,  384;  Huber  v.  State,  126 
Ind.  185,  189;  People  v.  Greenwall, 
108  N.  Y.  296.  A  witness  can  not  be 
impeached  by  showing  that  out  of 
court  he  had  expressed  suspicions  of 


the  prisoner,  or  an  opinion  of  his 
guilt,  which  he  denies  on  cross-exam- 
ination. Welch  v.  -State,  104  Ind. 
347,  351;  People  v.  Stackhouse,  49 
Mich.  76,  77,  13  X.W.  Rep.  364;  Com. 
v.  Snow,  111  Mass.  411. 

3  Sentell  r.  State,  34  Tex.Cr.Rep.  260, 

30  S.  W.  Rep.  226;  Goode  v.  State,  32 
Tex.  Cr.Rep.  505 ;  Williams  v. State,  24 
Tex.  App.  637;  People  v.  Doyell,  48 
Cal.  85;  Connor  v.  People,  18  Colo. 
373,  33  Pac.  Rep.  159;  Fallin  v.  State, 
83  Ala.  5;  State  v.  Flint,  60  Yt.  304; 
Lowe  v.  State,  97  Ga.  792,  25  S.  E. 
Rep.  676.  But  see  contra, Ball  v.  State, 

31  Tex.  Cr.  Rep.  214,  20  S.  W.  Rep. 
362 ;  Hobbs  v.  State,  133  Ind.  404 ;  State 
v.  McKinney,  111  N.  Car.  683,  and 
civil  cases  fully  cited  in  Underbill  on 
Ev.,  page  512. 


298  CRIMINAL  EVIDENCE.  §  242 

count  of  his  relation  to  the  crime  which  is  under  investigation, 
it  may  be  shown  that,  before  such  relation  existed,  the  witness 
made  statements  confirmatory  of  his  testimony  now  given  in 
open  court.1 

§  242.  Previous  silence  as  impeachment. — A  witness  may 
be  impeached,  not  only  by  his  contradictory  or  inconsistent 
statements,  but  also  by  proof  that  on  a  former  occasion,  under 
circumstances  where  it  was  his  duty  to  state  the  whole  truth, 
he  omitted  to  state  material  and  relevant  facts  which  he  now 
states.2  Thus,  it  may  be  proved  that  a  witness  omitted  to  state 
facts  at  the  preliminary  examination  which  he  testifies  to  on 
the  trial.3  But,  for  his  silence  to  be  admissible,  it  must 
appear  from  all  the  circumstances  that  it  was  his  duty  to  tell 
the  whole  truth.  The  witness  must  be  permitted  to  explain 
his  previous  ignorance  or  silence,  and  to  show  that  his  forget- 
f ulness  or  ignorance  was  real  and  not  assumed. 

He  may  testify  that  the  occasion  of  his  silence  was  a  pro- 
ceeding in  a  court  of  justice  during  which  he  was  not  ques- 
tioned upon  the  matter  at  all.4  The  denial  by  the  witness  that 
he  omitted  any  fact  on  a  previous  examination  may  be  dis- 
pensed with.  If  he  says  he  does  not  remember,  the  party 
seeking  to  impeach  may  prove  the  omission  to  testify.5 

The  witness  may  himself  testify  that  he  actually  forgot  the 
facts  upon  the  earlier  occasion,6  or  suppressed  them  through 
fear,7  and,  in  a  word,  that  his  silence  or  concealment  was  in 
good  faith  and  prompted  by  right  motives.8 

1  State  v.  Thomason,  1  Jones  (N.  Mont.  1 ;  Hyden  v.  State,  31  Tex.  Cr. 
Car.)  274;  Thompson  v.  State,  38  Ind.     Rep.  401.  404. 

39;  State  v.  Flint,  60  Vt.  304,  14  Atl.        5  Brown  v.  State,  79  Ala.  61,  63.     It 

Rep.  178.  may  be   shown  that  his  prior  state- 

2  Brown  v.  State,  79  Ala.  61,  62;  ment  was  omitted  from  the  record  of 
Com.  v.  Harrington,  152  Mass.  488.  the  former  proceeding.     United  States 

3  People  v.  Wirth  (Mich.,  1896),  66  v.  Ford,  33  Fed.  Rep.  861. 

N.  W.  Rep.  41.  6  State  v.  Turner,  36  S.  Car.  534. 

'Babcock  v.  People,  13  Colo.  515;        7  People  v.  Chapleau,  121  N.  Y.  266, 
State  v.  Vickers,  47   La.  An.   1574,  18    24  N.  E.  Rep.  469. 
So.  Rep.  639;  Territory  v.  Clayton,  8        8  Miller  v.  State  (Ga.,  1897),  25  S. 

E.  Rep.  366. 


§  243  THE    IMPEACHMENT    OF    WITNESSES.  299 

§  243.  Relevancy  of  evidence  to  show  the  general  reputation 
for  truthfulness  of  a  witness  who  has  been  impeached. — The 

party  whose  witness  has  been  directly  impeached  has  the  right 
to  introduce  evidence  to  overcome  any  presumption  that  may 
have  arisen  that  he  is  not  credible.  Not  only  may  he  intro- 
duce cumulative  evidence  to  corroborate  him,  but  he  may 
attempt  to  prove  that  his  general  reputation  for  truthfulness 
is  good.  It  has  been  held  that  a  party  should  not  be  permit- 
ted to  prove  that  his  witness  was  a  man  whose  reputation  for 
veracity  was  good,  where  the  impeachment  consisted  wholly 
of  evidence  that  the  witness  had  made  contradictory  state- 
ments out  of  court.1  But  the  majority  of  the  cases  repudiate 
this  distinction.  It  is  now  held  almost  universally  that  evi- 
dence to  show  that  the  reputation  of  the  witness  for  veracity  is 
good  may  be  introduced  whenever  the  evidence  of  the  witness 
has  been  impeached  in  any  way,  whether  by  his  contradictory 
declarations  or  by  a. direct  attack  upon  his  character.2 

But  evidence  that  a  witness  enjoys  a  reputation  for  truthful- 
ness is  not  receivable  to  strengthen  his  testimony  merely 
because  he  has  been  contradicted  by  an  adverse  witness,3  or 
because  he  has  been  shaken  or  confused  on  cross-examination.4 

§  244.  Limitations  upon  the  right  to  ask  questions  which 
disgrace  the  witness. — An  important  distinction  must  be  noted 
as  regards  the  competency  of  questions  the  answers  to  which 
involve  facts  which  tend  to  disgrace  the  witness.  The  mere 
fact  that  a  witness  on  his  direct  examination  must,  in  order  to 
answer  a  relevant  question  truthfully,  make  an  admission 
which,  while  it  may  not  tend  to  criminate  him,  may  disgrace 

1  Brown  v.  Mooers,  6  Gray  (Mass.)  People  ».  Ah  Fat,  48  Cal.  61;  Tipton 
451.  v.  State,  30  Tex.  App.  530;     Com.  v. 

2  Clem  v.  State,  33  Ind.  418;  Surles  Ingraham,  7  Gray  46.  For  civil  cases 
v.  State,  89  Ga.  167,  15  S.  E.  Rep.  38;  see  TJnderhill  on  Evidence,  §352. 
Griffin  v.  State,  26  Tex.  App.  157;  3  Sanssy  v.  So.  Flor.  R.  Co.,  22  Fla. 
Harris  v.  State,  30  Ind.  131 ;  State  v.  327 ;  Britt  v.  State,  21  Tex.  App.  215. 
Jones,  29  S.  Car.  201 ;  Magee  v.  Peo-  4  Stevenson  v.  Gunning,  64  Vt.  601; 
pie,  139  111.  138,  28  N.  E.  Rep.  1077;  State  v.  Rice  (S.  Car.,  1S97),  37  S.  E. 
State  v.  Fruge.  44  La.  An.  165,  167 ;  Rep.  452,  contra. 


300  CRIMINAL  EVIDENCE.  §  244 

him  or  lower  him  in  the  estimation  of  his  friends  and  acquaint- 
ances, is  not  sufficient  to  exclude  the  answer.  It  would  be 
not  only  unjust  but  absurd,  particularly  in  a  criminal  prosecu- 
tion, to  close  the  mouth  of  a  witness  for  that  reason  where  the 
liberty  and  perhaps  the  life  of  an  innocent  person  may  depend 
upon  his  answer.  His  answer  will  not  subject  him  to  any 
criminal  or  civil  liability.  It  may,  on  the  other  hand,  be  ab- 
solutely essential  to  a  proper  administration  of  justice.  Hence 
a  witness  will  be  compelled  to  give  relevant  evidence,  however 
greatly  it  may  degrade,  disgrace  or  humiliate  him,  provided 
his  reply  will  tend  to  throw  light  upon  the  question  at  issue.1 

Other  considerations  may  be  invoked  where  the  question 
which  tends  to  disgrace  the  witness  is  asked  while  he  is  under 
cross-examination.  The  policy  of  the  law  does  not  permit,  or 
at  least  does  not  encourage,  cross-examination  upon  matters 
wholly  irrelevant  merely  for  the  purpose  of  subsequent  contra- 
diction. Hence,  if  the  witness,  while  being  cross-examined, 
is  asked,  "Have  you  ever  been  convicted  of  burglary?  "  and 
replies  that  he  has  not,  the  interrogating  party  is  bound  by  his 
answer. 

But  objections  to  evidence  because  of  its  irrelevancy  are  to 
be  taken  by  a  party,  not  by  the  witness.  It  is  impossible  to 
formulate  any  general  rule  by  which  can  be  determined  the 
relevancy  of  questions  upon  cross-examination.  The  matter 
is  largely  in  the  judicial  discretion.  It  may  with  safety  be 
said  that  the  court  ought  to  interfere  whenever  necessary  to 
protect  the  witness  from  needless  insult  and  contumely,  and  to 
forbid  impertinent  questions  which  are  altogether  irrelevant, 
and  have  been  asked  merely  to  surprise,  annoy  and  confuse  the 
witness,  and  to  cause  him  to  lose  his  temper.2 

Subject  to  this  limitation  the  law  regards  as  relevant  all  facts 
which  tend  to  illustrate  the  credibility  of  the  witness  or  which 
may  enable  the  jury  to  determine  the  weight  of  his  testimony. 

1  People  v.  Mather,  4  Wend.  (N.Y.)  2  Com.   v.   Shaw,   4   Cush.    (Mass.) 

229,  250,  254;  Ex  parte  Boscowitz,  84  593;    Com.  v.  Sacket,  22  Pick.  (Mass.) 

Ala.  463 ;  Johnston  v.  Miller,  72  Mich.  394. 
265. 


§  245  THE    IMPEACHMENT   OF    WITNESSES.  301 

§  245.  Impeachment  by  showing  social  connections,  occupa- 
tion and  manner  of  living. — The  previous  conduct  of  the  wit- 
ness, his  life  and  associations,  whether  irreproachable  or  the 
reverse,  are  all  relevant.  Every  person  possesses,  to  a  certain 
extent,  the  power  of  selecting  his  domicile  and  avocation.  So 
the  choice  of  his  business  and  social  connections,  the  circle  of 
his  friends  and  acquaintances,  and  his  general  mode  and 
course  of  living  are  largely  in  his  own  control.  If,  therefore, 
he  voluntarily  associates  with  those  who  are  engaged  in  disrep- 
utable pursuits  ;  or  if  he  is  addicted  to  disgraceful  or  vicious 
practices,  or  follows  an  occupation  which  is  loathsome  and 
vile,  though  not  perhaps  criminal;  no  rule  of  law  prevents 
such  facts  from  being  shown  to  determine  his  credibility,  by 
questions  put  to  him  upon  his  cross-examination.  And  usu- 
ally he  may  be  questioned  as  to  specific  facts,  in  his  past 
career,  w7hich  may  tend  to  his  disgrace,  provided  they  are  not 
too  remote  in  point  of  time.1  Thus,  for  example,  the  witness 
may  be  compelled  to  answer  the  question,  "How  long  since 
you  lived  with  your  wife?  "  The  facts  that  a  man  had  aban- 
doned his  family,  has  no  permanent  place  of  abode  and  has 
become  a  tramp,  are  very  material  upon  his  credibility.2  So  it 
may  be  shown  by  cross-examining  a  witness  that  he  has  sought 
to  bribe  another  witness,3  or  otherwise  to  fabricate  evidence,4 
or  that  he  had  been  instructed  what  to  say  upon  the  witness 
stand,5  or  had  offered  to  leave  the  state  if  paid  for  doing  so.6 
But  it  is  generally  held  that  a  female  witness  can  not  be  asked 

1  Warren  v.   Com.    (Ky.,  1896),    35  Rep.    1062;    State  v.    Hilsabeck,    132 

S.  W.  Rep.  1028;  Clayton  v.  State,  31  Mo.  348,  34  S.  W.  Rep.  38. 

Tex.   Civ.   App.   489,  22  S.  W.   Rep.  8Yanke  v.  State,  51  Wis.  464,  468; 

404;  Carroll  v.  State,  32  Tex.  Cr.  Rep.  Roberts  v.  Com.  (Ky.,  1892),  20  S.  W. 

431,  24  S.  W.  Rep.   100;   Roberts  v.  Rep.  267. 

Com.  (Ky.,  1893),  20  S.  W.  Rep.  267;  s State  v.  Hack,  118  Mo.  92,  23  S.W. 

Ryan  v.  People,  79  N.  Y.  593;  State  Rep.  1089. 

v.  Pbilpot  (Iowa,  1896),  66  N.  W.  Rep.  4  England  v.  State,  89  Ala.  76. 

730 ;  State  v.  Miller,  100  Mo.  606 ;  State  5  State  v.  Tall,  43  Minn.  273,  276,  45 

v.  Taylor,  117  Mo.  181,  22  S.  W.  Rep.  N.  W.  Rep.  449;  Boulden  v.  State,  102 

806;  People  v.  Casey,  72  N.  Y.  393;  Ala.  78,  15  So.  Rep.  341. 

Reg.  v.  Burke,  8  Cox  C.  C.  44;  Peo-  s  Jenkins  ».  State,  34  Tex.  Cr.  Rep. 

pie  v.  Giblin,  115  N.  Y.  196,  21  N.  E.  201,  29  S.  W.  Rep.  1078. 


302 


CRIMINAL    EVIDENCE. 


§  246 


if  she  is  a  professional  prostitute  or  a  dissolute  woman,  or  if 
she  keeps  a  disorderly  house.1  And,  as  a  rule,  compelling  a 
witness  to  answer  degrading  or  disgracing  questions  is  largely 
a  matter  of  judicial  discretion.2 


§  24G.  When  and  how  previous  imprisonment  or  conviction 
of  crime  may  be  shown. — To  question  the  witness  on  cross-ex- 
amination for  the  purpose  of  ascertaining  from  his  own  lips  if 
he  has  ever  been  convicted  of,  or  imprisoned  for,  crime,  is  not 
usually  permitted,  in  the  absence  of  statute.  The  fact  of  con- 
viction or  of  incarceration  is  always  of  record.  Hence,  when 
either  fact  is  directly  in  issue,  it  must  be  proved  by  the  best 
evidence  of  which  it  is  susceptible.  A  transcript  of  the  prison 
register,  or  of  the  record  of  conviction,  ought  to  be  produced.8 
But  sometimes  by  statute  it  is  permitted  to  ask  the  witness  if 
he  has  ever  been  convicted  of  crime.4  In  case  the  conviction 
or  imprisonment  is  denied  by  the  witness,  it  must  be  proved 
by  a  copy  of  the  record.5 


1Uo\tz  v.  State,  76  Wis.  99,  44  N.W. 
Eep.  1107,  1110;  Stayton  v.  State,  32 
Tex.  Cr.  Rep.  33;  Ketchingman  v. 
State,  6  Wis.  417;  La  Beau  v.  People, 
34  N.  Y.  223,  230.  Contra,  State  v. Hack, 
118  Mo.  92;  Tla-Koo-Yet-Leev.  United 
States,  17  S.  Ct.  855. 

2  Com.  v.  McDonald,  110  Mass.  405 
State  v.  Hobgood,  46  La.  An.  855 
People  v.  Carr,  64  Mich.  702,  31  N.  W 
Rep.  590;  Browder  v.  State,  102  Ala 
164,  14  So.  Rep.  895. 

3  Boyd  v.  State,  94  Tenn.  505,  29  S 
W.  Rep.  901 ;  State  v.  Farmer,  84  Me 
436;  Driscoll  v.  People,  47  Mich.  413, 
417;  State  v.  Minor,  117  Mo.  302,  22 
S.  W.  Rep.  1085;  Chambless  v.  State 
(Tex.,  1894),  24  S.W.  Rep.  899 ;  State  v. 
Alexis,  45  La.  An.  973, 13  So.  Rep.  894 ; 
Murphy  v.  State,  108  Ala.  10,  18  So. 
Rep.  557;  Com.  v.  Sullivan,  150  Mass. 
315;  Kirby  v.  People,  123  111.  436; 
Saxon  v.  State,  96  Ga.  739,  23  S.  E. 
Rep.  116;  Com.  v.  Gorham,  99  Mass. 


420.     For  civil  cases  bearing  on  this 
rule,  see  Underhill  on  Ev.,  §  354. 

4  State  v.  O'Brien,  81  Iowa  88,  46 
N.  W.  Rep.  861;  People  v.  Hall,  48 
Mich.  482;  People  v.  Rodrigo,  69  Cal 
601;  State  v.  Pfefferle,  36  Kan.  90 
State  v.  Adamson,  43  Minn.  196,  45  N 
W.  Rep.  152;  Marion  v.  State,  16  Neb 
349;  State  v.  Miller,  100  Mo.  106 
State  v.  McGuire,  15  R.  I.  23;  State  v 
Merriman,  34  S.  Car.  16,  12  S.  E.  Rep 
619;  Com.*?. Morgan,  107  Mass. 199,  205 
Helm  v.  State,  67  Miss.  562 ;  State  v 
Martin,  124  Mo.  514,  28  S.  W.  Rep 
12;  State  v.  Pratt,  121  Mo.  566. 

5  State  v.  Sauer,  42  Minn.  258;  State 
v.  McGuire,  15  R.  I.  23;  People  v. 
Carolan,  71  Cal.  195;  State  v.  Wyse, 
33  S.  Car.  582;  Underhill  on  Ev.,  p. 
517,  note  3,  §  354.  These  statutes  are 
construed  strictly.  Where  the  stat- 
ute permits  proof  of  a  conviction  of 
any  crime,  a  conviction  of  either  fel- 
ony or  misdemeanor  may  be  shown. 


§247  TIIIC    IMPEACHMENT    OF    WITNESSES.  303 

§  247.  Incriminating  questions. — No  witness  can  be  re- 
quired or  compelled  to  answer  a  question,  if,  in  the  opinion  of 
the  court,  it  seems  evident  that  to  answer  it  truthfully  would 
tend  to  criminate  him,  or  even  subject  him  to  the  danger  of  a 
criminal  prosecution.1 

Whether  the  question  is  wholly  unanswered,  or  partly  an- 
swered and  the  witness  objects  to  going  any  further,  is  imma- 
terial. If  the  answer,  though  not  embracing  a  full  confession 
of  criminal  liability,  merely  forms  "  one  link  in  the  chain  of 
testimony  which  would  convict  him,"  the  witness  may  with- 
hold it. 

It  is  the  duty  of  the  court,  without  request,  to  instruct  the 
witness  that  he  need  not  answer.  He  may  then  answer,  if  he 
chooses  to  do  so,  and  if,  having  been  judicially  informed  of  his 
legal  prerogative  of  silence,  he  answers  the  question  fully,  he 
may  be  compelled  to  divulge  every  detail  of  the  incriminating 
transaction.2 

The  witness  can  not  be  compelled  to  explain  in  detail  how 
the  answer  required  would  tend  to  incriminate  him  in  order  to 
enjoy  the  privilege  of  refusing  to  answer.  It  is  sufficient  if  he 
swears  that  he  believes  that  his  answer  will  have  that  effect.3 
Whether  the  question  calls  for  an  answer  which  will  tend  to 
incriminate  the  witness  is  for  the  court  to  determine.4  The 
witness  must  answer,  though  he  shall  swear  that  he  believes 
his  answer  will  incriminate  him,  if,  from  all  the  circumstances, 
and  from  the  character  of  the  question  and  the  answer  required, 
it  shall  appear  to  the  satisfaction  of  the  court  that  any  possi- 

Helm   v.  State,  67  Miss.  562;    State  nate.    Lamson  v.  Boyden,  160  111.  613, 

v.  Bauer,  42  Minn.  258 ;  Com.  v.  Ford,  aff'g  57  111.  App.  232. 

146  Mass.  131 ;  State  v.  Brown  (Iowa,  2  Williams  v.  State,  98  Ala.  52, 13  So. 

1897),  69  N.  W.  Rep.  277.  Rep.   333;  Com.  v.   Pratt,   126  Mass. 

'Com.   v.   Trider,    143    Mass.    180;  462;  State  v.  Van  Winkle.  80  Iowa  15. 

State  v.  Pancoast  (N.  Dak.,  1896),  67  s People  v.  Mather,  4  Wend.  (N.  Y.) 

N.  W.  Rep.  1052;  Temple  v.  Com.,  75  229,  252-254;  Bellinger  v.  People,   8 

Va.  892 ;  Stevens  v.  State,  50  Kan.  712 ;  Wend.  595. 

Minters  v.  People,  139  111.  363 ;  Under-  *  Ex  parte  Irvine,  74  Fed.  Rep.  954 ; 

hill  on  Ev.,  p.  519,  note  11.     This  rule  People  r.  Mather,  4  Wend.  229,  252- 

is  also  applicable  to  the  production  of  254;  Stater.  Thaden,  43  Minn.  253; 

books  and  papers  which  will  incrimi-  State  v.  Tall,  43  Minn.  273;  Com.  v. 

Bell,  145  Pa.  St.  374. 


304  CRIMINAL  EVIDENCE.  §  247 

ble  answer  he  may  make  will  not  have  that  effect.  If  there  is 
no  reasonable  ground  for  supposing  that  he  will  incriminate 
himself  he  ought  to  answer.1  When  the  danger  to  the  witness 
is  apparent  he  must  be  allowed  a  large  discretion  in  remaining 
silent.2  The  accused  who  voluntarily  becomes  a  witness  in 
his  own  behalf  waives  the  privilege  of  refusing  to  answer  in- 
criminating questions,  so  far  as  the  charge  against  him  is 
concerned,  by  answering  upon  his  direct  examination  ques- 
tions relating  to  the  crime  with  which  he  is  charged,  and  in 
which  he  denies  his  guilt.  He  can  not,  subsequently,  on  his 
cross-examination,  refuse  to  answer  other  incriminating  ques- 
tions.3 The  right  to  refuse  to  answer  incriminating  questions 
is  personal  to  the  witness.  If  he  wishes  to  answer  he  may  do 
so,  and  neither  the  state  nor  the  accused  has  the  right  to 
object.4 

It  is  error  not  to  instruct  the  jury  that  no  inference  that  the 
witness  is  a  criminal  should  be  drawn  from  his  refusal  to  an- 
swer an  incriminating  question.5 

The  information  which  is  elicited  from  a  witness  who,  after 
he  has  claimed  his  privilege,  is  forced  to  answer  an  incriminat- 
ing question,  can  not  be  used  against  him  subsequently.6 

Forbes  v.   Willard,   37   How.   Pr.  4  Cush.   594;  Samuel  v.  People,  164 

(N.  Y.)  193;   Lothrop  v.  Roberts,  16  111.  379,  45  N.  E.  Rep.  728;  Brown  v. 

Colo.  250.  State  (Tex.,  1893),  20  S.  W.  Rep.  924; 

2Minter  v.  People,  39  111.  App.  438.  Taylors.  State,  83  Ga.  847,  10  S.  E. 

3  Shears  v.  State  (Ind.,  1897),  46  N.  Rep.  442,  and  see  cases  cited  in  Un- 
E.    Rep.   331;    McClain  v.  Com.,   110  derhill  on  Ev.,  p.  521. 

Pa.  St.  263 ;  Sullivan  v.  People,  114  5  State  v.  Bartlett,  55  Me.  200 ;  Dev- 
111.  24;  Com.  v.  Mullen,  97  Mass.  545;  ries  v.  Phillips,  63  N.  Car.  53.  The 
Stover  v.  People,  56  N.  Y.  315;  Rains  refusal  must  not  be  considered  by  the 
v.  State,  88  Ala.  91 ;  Com.  v.  Nichols,  jury  at  all.  It  is  gross  injustice  to  the 
114  Mass.  285;  State  v.  Ober,  52  N.  H.  prisoner,  and  constitutes  reversible 
459;  People  v.  Tice,  131  N.  Y.  651;  error  for  the  court,  to  charge  that  a  re- 
State  v.  Allen,  107  N.  Car.  805;  Spies  fusal  to  answer  an  incriminating  ques- 
v.  People,  122  111.1,235.  See,  also,  tionmay  lead  to  the  inference  that  the 
ante,  §  61,  and  Underhill  on  Evidence,  witness  is  endeavoring  to  shield  the 
page  521,  note  4.  accused  and  not  to  protect   himself. 

4  State  v.  Wentworth,   65  Me.  234;  Beach  v.  United  States,  46  Fed.  Rep. 
Bradford  v.  People,   22  Colo.  157,   43  754. 

Pac.  Rep.  1013;  State  v.  Butler  (S.  6  United  States  v.  Smith,  47  Fed. 
Car.,  1896),  24  S.  E.  Rep.  991 ;  People  Rep.  501.  Ex  parte  Buskett,  106  Mo. 
v.  Gosch,  82  Mich.  22 ;  Com.  v.  Shaw,    602. 


§  248  THE    IMPEACHMENT    OF    WITNESSES.  305 

If  facts  are  shown  from  which  the  court  is  convinced  that 
the  incriminating  evidence  called  for  by  the  question  can  not 
be  used  against  the  witness  in  a  criminal  prosecution,  the  wit- 
ness must  be  compelled  to  answer. 

Such  is  the  case  when  the  prosecution  of  the  crime  has  been 
barred  by  the  lapse  of  time,1  or  where  a  statutory  enactment 
forbids  the  use  of  such  testimony  in  a  criminal  prosecution  of 
the  witness.2 

§  248.    Interest  and  bias  of  the  witness  as  impeachment. — 

The  bias  of  the  witness  and  his  interest  in  the  event  of  the 
prosecution  are  not  collateral,  and  may  always  be  proved  to 
enable  the  jury  to  estimate  his  credibility.  They  may  be 
proved  by  his  own  testimony  upon  cross-examination  or  by 
independent  evidence.3  Thus,  for  example,  the  prosecution 
may  show  that  its  witness  has,  on  his  direct  examination, 
unexpectedly  proved  hostile,  and  may  then  show  by  other  wit- 
nesses that  the  biased  witness  was  at  one  time  ready  and  will- 
ing to  testify  against  the  prisoner.4 

On  the  other  hand  the  defendant  may  show  that  he  had  a 
difficulty  with  one  of  the  witnesses  for  the  state.5  The  bias  of 
the  witness  may  be  shown,  either  by  independent  testimony  or 
by  questions  put  to  him  upon  his  examination.  He  may  be 
interrogated  as  to  his  sympathy  with  the  prisoner,6  or  as  to  his 
hostility  towards  him.7 

1  Ex  parte  Boscowitz,  84  Ala.  463;  resulting  from  incriminating  disclos- 
People  v.  Kelly,  24  N.  Y.  74;  So.  Rail-  ures.  Brown  v.  Walker,  161  U.  S.  591, 
way  N.  Co.  v.  Russell,  91  Ga.  808,  18    16  S.  Ct.  Rep.  644. 

S.  E.  Rep.  40.  Contra,  McFadden  v.  s  Sage  v.  State,  127  Ind.  15,  28;  Ben- 
Reynolds  (Pa.,  1889),  11  Atl.  Rep.  638.  nett  v.  State,  28  Tex.  App.  539,  13  S. 

2  Ex  parte  Buskett,  106  Mo.  602;  W.  Rep.  1005;  Eldridge  v.  State,  27 
Willis  ».  State,  12  Ga.  444,  448;  Com.  v.  Fla.  162;  Davis  v.  State  (Neb.,  1897), 
Webster,  5  Cush.  Mass.  295.  The  con-  70  N.  W.  Rep  984. 

stitutional  protection  thrown  around  4  See  Underhill  on  Ev.,  §  340. 

a  witness  by  the  fifth  amendment  to  5  Jordan   v.    State,   79  Ala.    9,    12; 

the   federal   constitution,. which   pro-  Lyle  v.  State,  21  Tex.  App.  153;  Scott 

vides   that   no    person  shall   be  com-  v.  State  (Ala.,  1897),  21  So.  Rep.  425. 

pelled  to  be  a  witness  against  himself,  6  State  v.  Turlington,  102   Mo.  642, 

was  intended  to  shield  the   witness  15  S.  W.  Rep.  141. 

from     actual     prosecution,    and     not  7  A  witness  who  testifies  for  the  de- 

merely  from  the  disgrace  and  infamy  fendant  may  be  asked  if  he  did  not 
20— Cr.  Ev. 


306  CRIMINAL  EVIDENCE.  §  248 

In  proving  bias  or  interest  by  questions  put  to  the  witness 
regarding  his  previous  statements  out  of  court  indicating  bias, 
it  is  necessary  to  state  details  of  time,  place  and  person  atten- 
dant upon  such  declarations.1  If  the  witness  denies  having 
uttered  the  statement  indicating  bias,  or  if  he  refuses  to  an- 
swer or  answers  evasively,  the  fact  of  bias  may  be  proved  by 
other  witnesses.2  Under  modern  rules  the  possession  of  an 
actual  pecuniary  interest  in  the  outcome  of  an  action  is  not  a 
valid  objection  to  the  competency  of  a  witness.  But  it  may 
always  be  shown,  even  in  a  criminal  proceeding,  as  a  fact  from 
which  the  jury  may  infer  that  the  witness  is  biased.  So  a  de- 
tective testifying  against  the  accused  may  be  asked  if  he  had 
received  any  money,  or  if  he  expected  to  be  paid  for  acting  as 
a  detective.8 

It  may  always  be  shown  that  a  witness  testifying  for  the  ac- 
cused is  related  to  him,  either  by  blood  or  marriage.  And  the 
jury  may,  with  propriety,  be  warned  that  they  should  employ 
great  caution  in  weighing  the  testimony  of  such  a  person,4  un- 
less the  inference  of  bias  is  overcome  by  evidence  which  shows 

leave  the  state  to  enable  the  accused  testified  for  the  state  in  similar  crimi- 

to  procure    a    continuance.     Sage  v.  nal  prosecutions  is  not  admissible  as 

State,  127  Ind.  15,  26  N.  E   Rep.  667.  impeachment.     Mitchell   v.   State,  94 

1  Queen's  Case,  2  Br.  &  Bing.  284,  Ala.  68,  10  So.  Rep.  518;  Lea  v.  State, 
311 ;  Crumpton  v.  State,  52  Ark.  273;  64  Miss.  294,  1  So.  Rep.  244. 

State  v.  Brown,  28  Ore.  147,  41  Pac.        4  Smith  v.  State,  143  Ind.  685 ;  State 

Rep.  1042.    It  is  otherwise  when  the  v.  Calkins,  73  Iowa  128,  131,  34  N.  W. 

bias  is  to  be  proved  by  independent  Rep.  777;  United  States  v. Ford, 33  Fed. 

testimony   without  interrogating  the  Rep.  861 ;  State  v.  Hilsabeck,  132  Mo. 

witness.    People  v.  Brooks,  131  N.  Y.  348, 34  S.W.  Rep.  38 ;  State  v.  Byers,100 

321.  N.  Car.  512;  Simpson  v.  State,  78  Ga. 

2  State  v.  McFarlain,  41  La.  An.  91 ;  State  v.  Farrell,  82  Iowa  553,  48 
686;  Eldridge  v.  State,  27  Fla.  162;  N.  W.  Rep.  940.  Contra,  People  v. 
Bennett  v.  State,  28  Tex.  App.  539;  Shattuck,  109  Cal.  673,  42  Pac.  Rep. 
State  v.  Kelley,  45  S.  Car.  659,  668,  315.  In  Myers  v.  State,  97  Ga.  76,  25 
24  S.  E.  Rep.  60.  S.  E.  Rep.  252,  it  was  held  that  the 

3  State  v.  Tosney,  26  Minn.  262,  263,  bare  fact  of  a  reward  having  been 
264 ;  Heldt  v.  State,  20  Neb.  492,  30  offered  for  the  apprehension  of  the  ac- 
N.  W.  Rep.  626;  Rivers  v.  State,  97  cused  may  be  given  in  evidence  as  af- 
Ala.  72,  12  So.  Rep.  434.  Cf.  State  v.  fecting  the  credibility  of  the  witnesses 
Barber,   2   Kan.   App.  679.    But  the  for  the  prosecution. 

mere  fact  that  a  witness  has  frequently 


§  248  THE    IMPEACHMENT    OF    WITNESSES.  307 

to  their  satisfaction  that  the  witness   and   the  accused  are  on 
bad  terms. 

The  bias  of  a  witness  in  favor  of  the  accused  may  have  been 
created  by  means  of  threats  made  or  bribes  offered  by  him  or 
by  some  one  connected  with  him.  The  fact  that  a  witness  has 
been  thus  tampered  with  does  not  exclude  his  testimony.  But 
the  bribery  of  or  attempts  to  bribe  a  witness  either  to  testify  or 
to  remain  silent  when  upon  the  stand  are  always  relevant, 
though  it  is  for  the  jury  to  determine  what  effect,  if  any,  the 
threats  or  bribes  have  had  upon  the  credibility  of  the  witness.1 

1  A  witness  may  be  impeached  by  spirators  under  circumstances  of  un- 
showing  his  refusal  to  attend  the  usual  brutality.  Holtz  v.  State,  76  Wis. 
funeral  of  a  person  murdered  by  con-    99,  44  N.  W.  Rep.  1107,  1110. 


CHAPTER  XX. 


THE    ATTENDANCE    OF    WITNESSES. 


§249.  The  subpoena — Witness  fees.         §255.   Obstructing  the  attendance  of 


250. 


251. 
252. 

253. 

254. 


Constitutional  right  of  the  ac- 
cused to  compulsory  process        256. 
to  procure  the  attendance  of 
witnesses.  257. 

Subpoena  duces  tecum. 

Validity  of  reasons  for  not  pro- 
ducing writings.  258. 

Service  of  the   subpoena    and 
time  allowed  to  witnesses. 

Recognizance  to  secure  the  at-        259. 
tendance  of  witnesses  where 
the  hearing  is  postponed. 


witnesses. 

Change  of  venue  for  the  con- 
venience of  witnesses. 

The  intentional  absence  of 
witnesses — When  it  consti- 
tutes a  contempt  of  court. 

Privilege  of  witnesses  from 
civil  arrest  and  from  service 
of  civil  process. 

Attendance  of  witnesses  in 
custody. 


§  249.  The  subpoena — Witness  fees. — The  power  of  the  court 
to  hear  testimony  and  to  determine  controversies  confers  by 
implication  at  common  law  the  further  power  to  require  and 
to  compel  the  production  of  evidence  for  or  against  the  con- 
troverted facts.  The  judicial  power  to  summon  witnesses  is 
commonly  exercised  by  the  employment  of  a  subpoena,  which 
has  been  defined  as  a  "judicial  writ,  directed  to  the  witness, 
commanding  him  to  appear  at  the  court,  to  testify  what  he 
knows  in  the  cause  therein  described,  pending  in  such  court, 
under  a  certain  penalty  mentioned  in  the  writ.1"  In  the  ab- 
sence of  statute  the  state  is  under  no  obligations  to  pay  the  fees 
or  expenses  of  its  witnesses.  It  is  conceived  to  be  the  duty  of 
every  citizen  to  assist  gratuitously  so  far  as  lies  in  his  power 

xGreenl.  on  Ev.,  §309.  The  attend-  received  letters  rogatory,  may  be  se- 
ance of  a  witness  before  a  commis-  cured  by  a  subpoena,  or  order  in  the 
sioner,  who  has  been  appointed  to  take  nature  of  one.  State  v.  Bourne,  21 
his  deposition  by  a  court  which  has  Ore.  218. 

(308) 


§250 


THE    ATTENDANCE    OF    WITNESSES. 


309 


in  procuring  the  punishment  of  wrong-doers.1  Hence,  a 
statute  providing  that  a  witness  in  a  criminal  case  is  not  en- 
titled to  fees  does  not  conflict  with  a  constitutional  guarantee 
that  no  man's  services  shall  be  demanded  or  taken  by  the 
state  without  proper  compensation.2 

§  250.  Constitutional  right  of  the  accused  to  compulsory 
process  to  procure  the  attendance  of  witnesses. — The  prisoner, 
even  though  on  trial  for  his  life,  possessed,  at  common  law,  no 
absolute  right  to  command  the  process  of  the  court  to  secure 
the  attendance  of  his  witnesses,  while  if  they  voluntarily  at- 
tended he  was  not  permitted  to  examine  them.3  By  the  provis- 
ions of  the  federal  constitution  and  those  of  the  several  states, 
the  right  to  compulsory  process  to  obtain  the  attendance  of 
witnesses  is  secured  to  the  accused,4  and  he  is  thus  placed  on 
an  equality  with  the  state.5  If  he  is  unable  to  pay  the  expense 
of  serving  a  subpoena,  the  court  may  direct  a  court  officer  to 
serve  it.6  The  courts  construing  these  constitutional  enactments 
hold  that  they  merely  confer  a  right  to  a  subpoena.  The  ac- 
cused is  not  entitled  to  an  allowance  for  his  expenses  in  sum- 
moning witnesses  or  procuring  depositions,7  unless  it  is 
expressly  provided  by  statute  that  such  expenses  shall  be  paid 
by  the  county  if  he  is  acquitted.8 


1  For  the  statutes  see  Barrett  v.  State, 
24  Ala.  74;  Briggs  v.  Coleman,  51  Ala. 
561 ;  In  re  Herrick,  78  Ky.  23;  Sargent 
v.  Cavis,  36  Cal.  552;  Comrs.  v.  Ball- 
inger.  20  Kan.  590;  Hall  v.  Comrs.,  82 
Md.  618. 

2  Daly  v.  Multnomah  Co.,  14  Ore. 
20;  United  States  v.  Durling,  4  Biss. 
C.  C.  509,  511;  State  v.  Massey,  104 
N.  Car.  877,  878. 

3  State  v.  Hornsby,  8  Rob.  (La.)  554, 
559;  United  States  v.  Reid,  12  How. 
(U.S.)  361, 364, 4  Bl.Com.  355, 358,  359. 

4  West  v.  State,  1  Wis.  209. 

5  State  v.  Massey,  104  N.  Car.  877, 
880. 

6  Com.  v.  Lindsey,  2  Ches.  Co.  Rep. 


(Pa.)  268;  Ex  parte  Chamberlain,  4 
Cow.  (N.  Y.)  19.  And  where  one  ac- 
cused of  a  capital  crime  trusted  to 
counsel  to  summon  his  witnesses, 
which  the  latter  neglected  to  do,  it 
was  held  that  the  trial  must  be  post- 
poned until  the  witnesses  could  be 
subpoenaed.  State  v.  Lewis,  9  Mo. 
App.  321,  324-326. 

'State  v.  Hornsby,  8 Rob.  (La.)  554. 

8  State  v.  Massey,  104  N.  Car.  877, 
878 ;  State  v.  Willis,  79  Iowa  326,  329, 
330,  44  N.  W.  Rep.  699;  Carpenter  v. 
People,  3  Gilm.  147 ;  Bennett  v.  Kroth, 
37  Kan.  235,  238;  Little  v.  Todd,  3 
Rich.  (S.  Car.)  91;  Howell  v.  Black- 
well,  7  Ga.  443;  Donnelly  v.  County, 


310  CRIMINAL  EVIDENCE.  §  251 

The  prisoner  must  be  granted  the  writ  whenever  he  applies 
for  it  during  the  trial,1  but  his  constitutional  right  must  be 
exercised  in  conformity  with  recognized  legal  rules.  It  does 
not  apply  to  procure  the  personal  attendance  of  a  witness  who 
resides  out  of  the  jurisdiction  of  the  court,2  or  to  those  within 
it  whose  deposition  in  favor  of  the  prisoner  can  easily  be  pro- 
cured if  they  are  unable  to  attend  in  person.3  But  any  statute 
which  prescribes  that  a  criminal  trial  shall  not  be  postponed 
if  either  party  consents  that  the  facts  contained  in  affidavits 
for  a  continuance  shall  be  regarded  as  the  evidence  of  the  ab- 
sent witness,  is  unconstitutional,  as  it  deprives  the  accused  of 
his  constitutional  right  to  compulsory  process.4 

The  court  will  grant  the  accused  an  attachment  for  a  witness 
only  when  his  evidence  is  material,5  and  when  it  also  appears 
that  he  has  been  summoned,  or  that  diligence  has  been  used  to 
secure  his  attendance,  that  he  is  in  the  state,  and  that  his  early 
presence  can  be  secured.6 

§  251.  Subpoena  duces  tecum. — Where  the  production  of  doc- 
umentary evidence  in  the  possession  of  the  witness  is  required, 
a  subpoena  duces  tecum  is  employed,  commanding  him  to  search 
for  and  bring  to  court  certain  books  or  papers  which  are  spe- 
cifically described,  with  all  documents  and  writing  which  may 

7  Iowa  419;  Com.  v.  Williams,  13  nesses  for  the  defendant  at  the  public 
Mass.  501 ;  Ex  parte  Chamberlain,  4  '  expense,  where  it  appears  that  their 
Cow.  (N.  Y.)  49.  evidence  is  cumulative  or  immaterial. 

1  Edmondson  v.  State,  43  Tex.  230,  Goldsby  v.  United  States,  160  U.  S. 
231 ;  Green  v.  State,  17  Fla.  669,  670.  70, 16  S.  Ct.  Rep.  216 ;  State  v.  O'Brien, 
Cf.  States.  Thornton,  22  So.  Rep.  315.  18    Mont.    1,    43    Pac.     Rep.    1091; 

2  State  v.  Pagels,  92  Mo.  300,  308;  State  v.  Graves,  13  Wash.  485,  43  Pac. 
State  v.  Butler,  67  Mo.  59,  63;  State  v.  Rep.  376. 

Yetzer  (Iowa,  1896),  66  N.  W.  Rep.  4  State  v.  Berkley,  92  Mo.  41,  47. 

737.  5  People  v.  Marseiler,  70  Cal.  98, 102. 

sWillard??.  Superior  Court,  82  Cal.  6  States.  Johnson,  41  La.  An.  574, 

456,  458.    Cf  State  v.  Berkley.  92  Mo.  576.     If  the  venue  is  changed  on  the 

41,  47.     In  such  a  case  the   accused  motion  of  the  prosecution,  the  court 

has  an  absolute  right  to  a  commission  may   make   it   a   condition    that  the 

to  take  testimony.    State  v.  Hornsby,  traveling  expenses  of  the  defendants' 

8  Rob.  (La.)  554,  862.  And  it  is  not  witnesses,  who  can  not  pay  their  own 
error  for  the  court  to  exercise  its  dis-  expenses,  shall  be  provided  for.  Peo- 
cretion  in   refusing  to  summon  wit-  pie  v.  Baker,  3  Abb.  Pr.  42. 


§  252  THE    ATTENDANCE    OF    WITNESSKS.  311 

be  evidence  in  the  case.  The  papers  are  required  to  be  stated 
with  that  degree  of  certainty  which  is  practicable  under  the 
circumstances,  that  the  witness  may  know  what  is  wanted  of 
him,  and  the  court  may  ascertain  if  the  subpoena  has  been 
properly  obeyed.1  The  sole  object  of  this  writ  is  the  production 
of  documentary  evidence,  and  a  piece  of  metal  or  other  article, 
or  a  weapon  with  which  a  crime  has  been  committed,  can  not  be 
brought  into  court  by  a  subpoena  duces  tecum.2  Nor  can  the 
writ  be  employed  to  compel  the  production  of  writings  which 
are  not  to  be  used  as  evidence,  but  to  refresh  the  memory  of  a 
witness.3 

§  252.  Validity  of  reasons  for  not  producing  writings. — Dis- 
obedience to  a  subpoena  duces  tecum  by  a  post-office  or  internal 
revenue  official  is  not  excused  by  the  fact  that  the  rules  of  his 
department  forbid  him  to  disclose  any  information  contained 
in  its  records.4  A  witness  in  whose  possession  are  papers 
which  it  is  sought  to  produce  by  a  subpoena  duces  tecum,  is  not 
excusable  for  refusing  or  neglecting  to  obey  it,  because  the 
papers  do  not  belong  to  him.  But  the  custodian  of  public 
records,  and  even  of  the  records  of  a  private  corporation  will 
be  excused  from  bringing  the  originals  into  court  because  of 
the  great  inconvenience  which  would  certainly  result,  and 
because  the  writings  can  generally  be  proved  in  a  satisfactory 
manner  by  authenticated  copies.5 

The  mere  fact  that  the  witness  brings  the  documents  in 
court,  in  response  to  the  subpoena,  does  not  determine  their 
admissibility  as  evidence.6     Nor  will  the  witness  be  compelled 

1  It  is  the  duty  of  the  person  to  3  United  States  v.  Tilden,  10  Ben.  C. 
whom  the  writ  is  directed  to  make  a  C.  566.  While  a  subpoena  duces  tecum 
reasonable  search  for  the  documents  is  unreturned  or  unserved,  no  second 
required  if  they  are  in  his  possession,  subpoena  will  be  valid  for  the  same 
United  States  v.  Babcock,  3  Dill.  C.  C.  purpose.  Elting  v.  United  States,  27 
566,  570,  571 ;  Elting  v.  United  States,  Ct.  CI.  158. 

27  Ct.  CI.  158 ;  United  States  v.  Hunter,  *  Rice  v.  Rice,  47  N.  J.  Eq.  559 ;   In 

15  Fed.  Rep.  712.  re  Hirsch,  74  Fed.  Rep.  928. 

2  In  re  Shepard,  18  Blatchf.  225,  3  5Corbett  v.  Gibson,  16  Blatchf.  334, 
Fed.    Rep.    12;     Johnson    v.     North  335. 

Branch  Co.,  48  Fed.  Rep.  191,  194.  6  King  v.  Dixon,  3  Burr.  1687;  Camp- 


312  CRIMINAL  EVIDENCE.  §  253 

to  produce  the  documents,  though  he  have  them  with  him  in 
court,  if  he  can  show  a  lawful  or  reasonable  reason  for  with- 
holding them.1  The  sufficiency  and  validity  of  the  reason  for 
not  producing  a  writing  are  for  the  court.2  The  mere  assertion 
of  the  witness  that  writings  are  not  in  his  possession  does  not 
excuse  their  non-production,  if  it  appears  they  were  recently 
in  his  hands  and  he  fails  to  account  for  their  disappearance.8 

§  253.  Service  of  the  subpoena  and  time  allowed  to  wit- 
nesses.— The  subpoena  should,  in  justice  to  the  witness,  be 
seasonably  served.  He  should  be  given  a  reasonable  oppor- 
tunity so  to  arrange  his  business  that  it  will  not  suffer  during 
his  absence.4  It  is  now  usually  enacted,  by  statute  that  a  wit- 
ness shall  be  allowed  one  day's  time  for  each  twenty  miles  he 
is  compelled  to  travel  from  his  residence  to  the  court  where  his 
testimony  is  needed.  At  least  one  day's  notice  is  necessary  in 
every  case.  The  witness  must  be  served  with  the  subpoena  in 
person,  so  that  being  thus  informed  of  its  contents,  he  may  be 
chargeable  with  contempt  if  he  disobey  it.  To  constitute  a 
personal  service,  the  subpoena  should  be  shown  to  the  witness, 
and  a  copy  or  a  ticket  containing  a  concise  summary  of  its 
contents  should  be  delivered  to  him,  accompanied  by  his  fees 
and  an  oral  statement  of  what  the  paper  is.5  A  subpoena  is 
only  valid  to  secure  the  attendance  of  a  witness  in  the  particu- 
lar proceeding  in  which  it  issues.  It  is  inoperative  to  secure 
his  presence  at  a  later  term  to  which  the  trial  has  been  ad- 
journed.6 

§  254.  Recognizance  to  secure  the  attendance  of  witnesses 
where  the  hearing  is  postponed. — Where  the  accused  on  the 
preliminary  examination  has  been  committed  for  trial,  or  is 
held  to  await  the  action  of  the  grand  jury,  or  where  the  trial 

bell  v.  Dalhousie,  L.  R.  1  H.L.  Sc.  App.  2  Bull  v.  Loveland,  10  Pick.  (Mass.) 

496;  Mott  v.  Consumers'  Ice  Co.,  52  9;  Lane  v.  Cole,  12  Barb.  (N.  Y.)  680. 

How.  (N.  Y.)  Pr.  244.  s  Fenlon  v.   Dempsey,   21   Abb.  N. 

1  Lane  v.  Cole,  12  Barb.  (N.  Y.)  680 ;  Cas.  291. 

Central     Nat.    Bank    v.     Arthur,     2  4  In  re  Hughbanks,  44  Kan.  105, 109. 

Sweeney  (N.  Y.)  194.  5  See  Underhill  on  Evidence  §  281a. 

6  Sapp  v.  King,  66  Tex.  570,  571. 


§255 


THE    ATTENDANCE    OF    WITNESSES. 


313 


is  continued,  it  is  sometimes  the  practice  to  require  a  witness 
to  give  his  recognizance  or  personal  bond  in  order  that  his 
future  attendance  at  the  trial  may  be  secured.1  It  is  in  the 
discretion  of  the  court  to  accept  sureties  for  the  attendance  of 
the  witness,  and  if  they  are  not  procurable,  or  if  the  witness 
refuses  to  give  his  recognizance,  the  court  may  order  that  he 
shall  be  kept  in  custody  until  the  trial.2  This  is  doubtless  a 
correct  statement  of  the  practice  as  it  obtained  at  common  law, 
but  the  modern  tendency  is  to  regard  such  a  mode  of  proced- 
ure as  extremely  oppressive  and  unjust.  It  is  certainly  unfair 
to  an  innocent  person,  whose  only  offense  is  his  accidental  pres- 
ence at  the  time  and  place  of  a  crime,  to  incarcerate  him  be- 
cause he  is  unable  to  give  sureties  for  his  appearance  as  a  wit- 
ness on  the  trial.  Hence  it  is  sometimes  provided  by  statute 
that  a  witness  who  is  unable  to  give  sureties  for  his  appearance 
may  be  released  from  custody  on  giving  his  deposition.3 

§  255.  Obstructing  the  attendance  of  witnesses. — At  the  com- 
mon law,4  and  now  frequently  by  statute,  any  attempt  to  re- 
tard or  to  prevent  the  attendance  of  witnesses  called  to  testify 
in  either  civil  or  criminal  proceedings,5  or  the  act  of  advising  a 
witness  not  to  answer  any  question  put  to  him,6  is  a  misde- 
meanor. 


1  Bickley  v.  Com.,  2  J.  J.  Marsh. 
(Ky.)  572,  574;  State  o.  Grace,  18 
Minn.  398,  402;  Means  v.  State,  10 
Tex.  App.  16,  21;  Ex  parte  Shaw,  61 
Cal.  58,  59;  United  States  v.  Durling, 
4  Biss.  C.  C.  509,  510. 

2  2  Hale  P.  C.  282;  Roscoe  Cr.  Ev., 
p.  87;  Fawcet  v.  Linthecum,  7  Ohio 
Cir.  Ct.  Rep.  141;  State  v.  Grace,  18 
Minn.  398,  402;  In  re  Petrie,  1  Kan. 
App.  184. 

8  State  v.  Grace,  18  Minn.  398,  403, 
404;  People  v.  Lee,  49  Cal.  37;  Bick- 
ley v.  Com.,  2  J.  J.  Marsh.  (Ky.)  572, 
574.  It  is  doubtful,  however,  if  the 
deposition  is  admissible  as  evidence 
against  the  accused  unless  be  bad  a 
full  opportunity  to  confront  the  wit- 


ness and  to  cross-examine  him  at  the 
previous  hearing. 

4  Com.  v.  Reynolds,  14  Gray  (Mass.) 
87,  89. 

5  4  Bl.  Com.  129;  State  v.  Keyes,  8 
Vt.  57 ;  State  v.  Carpenter,  20  Vt.  9, 
12;  United  States  v.  Kee,  39  Fed.  Rep. 
603,  604;  State  v.  Ames,  64  Me.  386, 
388;  State  v.  Bailer,  26  W.  Va.  90,  94; 
Rex  v.  Lawley,  2  Stra.  904.  See  §  — . 
The  fact  that  the  witness  was  expected 
to  testify,  even  though  he  has  not 
been  subpoenaed,  and  is  not  under  re- 
cognizance to  appear,  is  sufficient. 
State  r.  Horner  (Del.,  1893),  26  Atl. 
Rep.  73. 

6  Gaudy  v.  State,  23  Neb.  436;  Per- 
row  ».  State,  67  Miss.  365,  368. 


314  CRIMINAL  EVIDENCE.  §  256 

It  is  immaterial  that  the  attempt  was  unsuccessful,1  or  that 
the  obstructor  refrained  from  the  employment  of  violence  or  force 
and  confined  himself  wholly  to  threats  or  scurrilous  language,8 
got  the  witness  intoxicated,  so  that  he  was  unable  to  attend,8  or 
employed  the  machinery  of  the  criminal  law  to  prevent  his  at- 
tendance by  preferring  an  unfounded  charge  against  him,  and, 
in  collusion  with  a  magistrate,  procured  his  imprisonment.4 
The  witness  may  obtain  a  warrant  for  the  arrest  of  the  party 
who  has  obstructed  him,5  or  the  person  who  has  thus  illegally 
and  maliciously  hindered  the  attendance  of  the  witness  may 
be  indicted  by  the  grand  jury.6 

Intimidating  a  witness  from  testifying  against  one  accused  of 
felony,  though  a  misdemeanor,  does  not  make  the  offender  an 
accessory  to  the  felony.7 

The  rules  and  principles  laid  down  above  are  usually  in- 
voked in  cases  where  private  persons  attempt  to  influence  wit- 
nesses who  were  called  to  testify  against  the  accused.  They 
are,  of  course,  equally  applicable  where  police  officials  or  public 
prosecuting  officers  practice  similar  methods  of  intimidation  up- 
on the  witness  for  the  accused.  And  in  any  event  it  is  extremely 
improper  to  allow  a  public  prosecutor  to  endeavor  to  dissuade 
witnesses  for  the  accused  from  appearing  and  testifying,  even 
though  he  may  have  the  best  of  grounds  to  believe  that  they 
are  unreliable  and  that  they  will  perjure  themselves. 

§  256.    Change  of  venue  for  the  convenience  of  witnesses. — 

In  civil  cases  in  order  to  avoid  the  expenditure  of  large  sums 

1  Russell  on  Cr.,  p.  182;  Gandy  v.  the  witness  was  material,  Com.  v. 
State,  23  Neb.  436;  State  v.  Carpenter,  Reynolds,  14  Gray  (Mass.)  87,  90),  or 
20  Vt.  9,  12.  the  particular  method  used  to  intimi- 

2  Reg.  v.  Onslow,  12  Cox  C.  C.  358 ;  date  or  obstruct  him,  State  v.  Ames, 
Charlton's  Case,  2  Myl.  &  Cr.  316.  64  Me.  386,  388,  shall  be  set  forth  in 

3  State  v.  Holt,  84  Me.  509,  511.  the  indictment. 

4  United  States  v.  Kindred,  4  Hughes  7  Reg.  v.  Chappie,  9  C.  &  P.  355.  A 
(U.  S.)  493.  person  is  not  guilty  of  intimidating  or 

5  Magnay  ».  Burt,  5  Q.  B.  381,  394.  impeding  a  witness  who  beats  him  af- 

6  It  is  not  necessary  that  the  record  ter  he  has  testified.  United  States  v. 
of  the  case  in  which  the  witness  was  Thomas,  47  Fed.  Rep.  807,  808 ;  United 
to  testify,  State  v.  Carpenter,  20  Vt.  9,  States  v.  Kee,  39  Fed.  R.  603,  604. 

12,  or   the  fact  that  the  evidence  of 


§  257  THE    ATTENDANCE    OF    WITNESSES.  315 

of  money  as  mileage,  or  for  the  taking  of  depositions,  it  is 
very  frequently  provided  by  statute  that,  where  the  convenince 
of  the  witnesses  requires  it,  the  venue  or  place  of  trial  of  the 
action  may  be  changed.  But  as  a  general  rule,  in  criminal 
cases  no  change  of  venue  can  be  procured  solely  for  the  con- 
venience of  witnesses.1 

§  257.  The  intentional  absence  of  witnesses — When  it  con- 
stitutes a  contempt  of  court. — Every  witness  who  has  been 
properly  summoned  to  attend  and  give  testimony  is  guilty  of  a 
contempt  of  court  if  he  intentionally  fails,  neglects  or  refuses 
to  attend.2  The  court  may,  upon  the  application  of  the  party 
by  whom  he  has  been  summoned,  grant  an  ex  parte  and  im- 
mediate order  for  his  arrest  upon  facts  showing  that  his  con- 
tempt is  intentional  and  manifest.  But  usually  an  attachment 
will  issue  only  after  the  granting  and  the  return  of  a  prelimi- 
nary order  to  show  cause.3  The  subject  is  usually  regulated 
by  statute.  Where  this  is  not  the  case  the  power  to  grant  an 
attachment  is  discretionary.4  At  common  law  a  witness  is  not 
in  contempt  who  fails  to  attend  on  his  subpoena  summoning 
him  to  appear  before  the  grand  jury.  He  must  be  summoned 
to  appear  in  court  to  give  evidence  before  the  grand  jury.5 

It  is  never  essential  that  the  trial  should  have  been  be- 
gun, or  that  the  witness  should  have  been  called  in  open 
court  before  an  attachment  will  issue  to  compel  his  pres- 
ence. But  it  must  be  satisfactorily  proved  that  he  is  willfully 
disobedient  in  absenting  himself.6  The  party  must  move 
promptly  for  an  attachment  to  bring  the  witness  before  the 
court.  The  application  must  be  founded  upon  affidavits  show- 
people  v.  Harris,  4  Den.  (N.  Y.)  5  Baldwin  v.  State,  126  Ind.  24,  28. 
150,  152.  6  Wilson  v.  State,  57  Ind.  71,  73.     A 

*  In  re  Gunn,  50  Kan.  155,  211;  Peo-  member  of  congress  is  not  exempt 
pie  v.  Brown,  46  Hun  (N.  Y.)  320,  from  subpoena  by  the  accused  in  a 
322;  Com.  v.  Carter,  11  Pick.  (Mass.)  criminal  case.  The  constitution  confers 
277,  279;  Stephens  v.  People,  19  N.  Y.  upon  every  man  charged  with  crime 
549;  Baldwin  v.  State,  126  Ind.  24,  28.  the  benefit  of  compulsory  process  to 
'Wilson  v.  State,  57  Ind.  71,  73.  obtain  the  attendance  of  witnesses. 

4  State  v.  Hillstock,  45  La.  An.  298,    United  States  v.  Cooper,  4  Dall.  341. 
12  So.  Rep.  352. 


316  CRIMINAL  EVIDENCE.  §  258 

ing  facts  sufficient  to  constitute  a  prompt,  seasonable  and  per- 
sonal service  of  the  subpoena  and  the  payment  or  tender  of  all 
proper  and  necessary  fees.  A  writ  of  attachment  for  contempt 
is  an  extraordinary  remedy  which,  in  the  absence  of  a  statute, 
is  wholly  in  the  discretion  of  the  court,  and  it  should  issue 
only  upon  evidence  that  is  reasonably  clear  and  convincing, 
that  its  issuance  is  needed  and  that  the  evidence  of  the  witness 
is  material,1  though  the  immateriality  of  his  evidence  is  no 
defense  for  a  witness  who  distinctly  refuses  to  obey  a  subpoena. 
Every  person,  whatever  his  office  or  dignity,  is  bound  to  ap- 
pear and  testify  when  he  is  required  to  do  so  by  proper  judicial 
process,  unless  he  has  a  lawful  excuse.  It  has  been  held  that 
the  official  engagements  of  the  higher  officers  of  the  govern- 
ment may  be  a  sufficient  and  legal  excuse,  though  the  dignity 
of  the  office  is  not.2 

A  witness  who  has  received  early  notice  to  attend  court  may 
be  in  contempt  if,  believing  he  has  sufficient  time,  he  post- 
pones compliance  with  the  subpoena  until  the  case  is  on  trial.3 

§  258.  Privilege  of  witnesses  from  civil  arrest  and  from  serv- 
ice of  civil  process. — A  witness  who  is  beyond  the  jurisdiction 
of  the  court  is  exempted  from  the  service  of  a  summons  or 
other  civil  process  under  the  same  conditions,  as  regards  time 
and  place,  and  for  the  same  reasons,  as  he  is  exempt  from  civil 
arrest  while  voluntarily  within  the  jurisdictional  limits  of  the 
court  for  the  purpose  of  testifying.4  Not  only  are  witnesses 
privileged  from  service  of  civil  process  during  their  attendance, 
but  they  are  also  protected  from  arrest  in  civil  actions  during 

1  Garden  v.  Creswell,  2  M.  &  W.  have  a  remedy  in  damages.  Thomp- 
319;  State  v.  Trounce,  5  Wash.  St.  son  v.  German  Valley  R.  R.  Co., 
804;  People  v.  Van  Tassell,  64  Hun     supra. 

(N.  Y.)  444,  448-452 ;  Wyatt  v.  People,  3  Jackson  v.  Seager,  2  D.  &  L.  13. 

17  Colo.  252,  262-265,  and  cases  cited  4  Hollender  v.  Hall,  58  Hun  (N.  Y.) 

in  Underhill  on  Ev.,  on  page  420.  604;    Christian   v.  Williams,   35   Mo. 

2  Thompson  v.  German  Valley  R.  R.  App.  297,  303;  Larned  v.  Griffin,  12 
Co.,  22  N.  J.  Eq.  Ill,  113;  1  Burr's  Fed.  Rep.  590;  Compton  v.  Wilder, 
Trial  182.  It  is  doubtful,  however,  if  40  Ohio  St.  130;  Massey  v.  Colville, 
the  executive  official  can  be  proceeded  45  N.J.  L.  119;  Person  v.  Grier,  66 
against  for  contempt.     The  party  may  N.  Y.  124. 


§  258  THE  ATTENDANCE  OF  WITNESSES.  317 

the  time  they  are  proceeding  to,  remaining  at,  or  returning 
from  court,1  or  any  place  where  a  congressional  or  legislative 
investigation  is  in  progress."  Non-resident  witnesses,  in  order 
to  encourage  their  voluntary  attendance,  and  because  they  can 
not  be  summoned  by  a  subpoena,  will  be  privileged,  although 
they  may  have  come  into  the  state  voluntarily,3  but  the  rule  is 
otherwise  in  the  case  of  a  witness  who  resides  within  the  juris- 
diction and  who  attends  voluntarily  and  without  a  subpoena.4 

The  non-resident  witness  will  be  regarded  as  having  waived 
his  privilege  if  he  shall  voluntarily  submit  to  arrest  or  fail  to 
assert  his  exemption  and  claim  his  liberty  at  his  earliest  oppor- 
tunity.    He  can  not  then  claim  his  privilege  has  been  violated.5 

The  trial  in  which  he  was  to  testify  will  be  continued  until 
his  discharge  from  arrest.6  The  witness  is  privileged  not  only 
during  his  journey  to  and  from  the  place  where  the  court  is  in 
session,  but  also  during  his  detention  in  the  place  where  the 
court  is  held,  if  the  sole  reason  of  his  stay  is  his  purpose  to 
testify.  The  law  allows  a  reasonable  time  for  the  journey  to 
and  from  the  place  of  trial,  but  does  not  countenance  loitering,7 
though  a  slight  deviation  to  partake  of  food,  to  see  one's 
friends,  or  to  obtain  papers  which  are  to  be  used  as  evidence 
at  the  trial,  will  not  nullify  the  privilege  from  arrest.  If  the 
witness,  after  testifying,  before  returning  home,  proceeds  to 
transact  business  which  is  wholly,  unconnected  with  his  func- 
tions as  a  witness,  his  privilege  ceases.8 

1  Ballinger  v.  Elliott,  72  N.  Car.  596,  case  of  his  illegal  arrest,  order  his  im 
598;  May  v.  Shumway,16Gray(Mass.)  mediate  discharge  upon  the  proper 
86,  87;  Norris  v.  Beach,  2  Johns,  motion  supported  by  affidavits.  Moore 
(N.  Y.)  294;  and  TJnderhill  on  Evi-  v.  Green,  73  N.  Car.  394.  Though  in 
dence,  page  421,  note  2.  the  case  of  inferior  courts  the  witness 

2  Thompson's  Case,  122  Mass.  428,  may  be  under  necessity  of  employing 
429.  the  writ  of  habeas  corpus.     Smith  v. 

3  Christian  v.  Williams,  35  Mo.  App.  Jones,  76  Me.  138. 

297,  303;    Person  v.  Grier,  66  N.  Y.        6  Hurst's  Case,  4  Dall.  387;  Com.  v. 

124,  126;    Jones  v.  Knauss,  31  N.  J.  Daniel,   4  Pa.  L.  J.   R.   49;    United 

Eq.  211,  214.  States  v.  Edme,  9  S.  &  R.  (Pa.)  147. 

4  Rogers  v.  Bullock,  3  N.  J.  L.  109.  7  Chaffee  v.  Jones,  19  Pick.  (Mass.) 
6  Smith  v.  Jones,  76  Me.  138;   Un-  260. 

derhill  on  Evidence,  page  421,  notes        8  See  Underbill  on  Evidence,  page 
5  and  6.    The  court  in  which  the  wit-    420,  and  notes, 
ness  is  called  to  testify  will,  in  the 


318  CRIMINAL  EVIDENCE.  §  259 

§  259.  Attendance  of  witnesses  in  custody, — The  attendance 
of  a  witness  who  is  incarcerated  in  prison,  or  who  is  in  the 
military  or  naval  service,  may  be  procured  by  the  service  of  a 
writ  of  habeas  corpus  ad  testificandum  on  the  prison-keeper  or 
officer  in  whose  immediate  charge  he  is.1  The  application  for 
the  writ  should  specify  the  nature  of  the  suit  in  which  his  at- 
tendance is  needed,  that  the  evidence  of  the  witness  is  material, 
and  that  the  witness  is  restrained  from  attending  court,  to- 
gether with  the  circumstances  of  the  restraint  so  far  as  they  are 
known  to  the  applicant.  As  the  general  rules  governing  the 
granting  and  the  service  and  return  of  this  writ  are  those 
which  obtain  in  connection  with  the  ordinary  writ  of  habeas 
corpus,  no  elaboration  of  them  is  necessary  in  the  connection. 

1  People  v.  Sebring,  14  Misc.  Rep.  (N.  Y.)  31. 


CHAPTER  XXI. 


ABSENT    WITNESSES    AND    CONTINUANCES. 


§  260.  Grounds  for  admitting  the 
testimony  of  missing  wit- 
nesses. 

261.  Deceased  or  insane  witnesses 

— How  death  of  witness  may 
be  proved. 

262.  Witnesses  sick  or  out  of  the 

jurisdiction — Distinction  be- 
tween civil  and  criminal 
cases. 

263.  Mode  of  proving  absence  of 

witness. 

264.  Absence  of  witness  procured  by 

connivance — Relevancy  and 
use  of  evidence  of  such  wit- 
ness. 

265.  Cross-examining  and  confront- 

ing witnesses. 

266.  Mode  of  proving  the  evidence 

of  the  absent  witnesses — 
Substance  only  need  be 
stated. 


§267.  Stenographer's  notes,  judge's 
minutes  and  bill  of  excep- 
tions when  used  to  prove  the 
evidence  of  the  absent  wit- 
ness. 

268.  Continuance  when  granted  be- 

cause of  absence  of  witness 
— Discretionary  power  of  the 
court. 

269.  Due  diligence  in    summoning 

witness  must  be  proved  — 
The  competency  and  mate- 
riality of  his  testimony  must 
appear. 

270.  What  facts  the  affidavit  for  the 

continuance  must  contain. 

271.  Admissions  to  avoid    contin- 

uance^— Constitutional  right 
of  the  accused  to  enjoy  the 
benefit  of  oral  testimony. 

272.  Admission  of  facts  as  true  to 

avoid  continuance. 


§  260.  Grounds  for  admitting  the  testimony  of  missing  wit- 
nesses.— The  main  reasons  for  the  rejection  of  hearsay  evidence 
are  the  absence  of  a  judicial  oath  and  of  an  opportunity  for 
the  cross-examination  of  the  person  who  is  the  informant  of 
the  witness. 

Where  a  witness  who  has  given  testimony  in  any  judicial 
proceeding,  civil  or  criminal,  can  not  be  produced  at  a  subse- 
quent trial  of  the  same  matter  between  the  same  parties,  there 
can  be  no  objections  on  such  grounds  to  receiving  his  sworn 
testimony  at  the  former  trial,  if  the  absence  of  the  witness  is 
not  caused  by  the  party  desiring  to  use  his  evidence. 

(319) 


320  CRIMINAL  EVIDENCE.  §  261 

The  later  trial  should  be  for  the  same  offense,  and  the  ac- 
cused person  should  be  the  same  as  in  the  former.  It  is  not 
material  that  the  later  trial  is  under  another  indictment,  if  the 
offense  charged  and  the  parties  are  identical.1 

§  261.  Deceased  or  insane  witnesses — How  death  of  witness 
may  be  proved. — In  criminal,  as  in  civil  procedure,2  the  evi- 
dence of  a  witness  at  a  prior  trial  may  be  proved  as  evidence 
in  a  subsequent  trial  of  the  accused  for  the  same  offense  if  the 
witness  is  dead,3  or  has  become  incompetent  by  reason  of  men- 
tal derangement.4  His  testimony  is  admissible  either  for  or 
against  the  party  in  whose  favor  he  originally  testified. 

The  same  rule  is  applicable  to  evidence  received  at  the  pre- 
liminary examination,  whether  it  was  or  was  not  committed 
to  writing,  where  a  witness  is.  dead,  but  not  where  he  is  miss- 
ing merely.5  The  death  of  the  witness  must  be  shown  by  the 
best  evidence  which  is  obtainable,  preferably  a  certified  copy  of 
the  record.  Evidence  that  it  is  generally  believed  or  reported 
that  an  absent  witness  is  dead  is  not  competent.6 

§  262.  Witnesses  sick  or  out  of  the  jurisdiction — Distinction 
between  civil  and  criminal  cases. — It  was  formerly  doubted, 
even  in  civil  cases,  whether  the  testimony  of  a  living  witness 
who  was  absent  merely  would  be  received  in  trial.  Though  the 
authorities  sustain  the  rule  by  which  in  civil  suits  the  testimo- 
ny of  an  absent  witness  is  received  not  only  in  case  of  death, 
but  where  he  is  incompetent  by  insanity  or  illness,  or  mere  ab- 
sence, the  criminal  courts  always  hesitate,  in  the  absence  of  a 

1  Reynolds  v.  United  States,  98  U.  S.  ler  v.  State,  67  Ala.  55 ;  State  v.  Laque, 
145,  158-161.  41  La.  An.  1070. 

2  See  Underhill  on  Ev.,  §120.  5  Davis  v.   State,  17  Ala.  354,  357; 
8  State  v.  Taylor,  Phil.  (N.  Car.)  L.     State  v.  Hooker,  17  Vt.  658;  Cox  n. 

508,  513;   Hair  v.  State,  16  Neb.  601,  State  (Tex.,  1896),  36  S.  W.Rep.  435; 

605;  State  v.  McNeil,  33  La.  An.  1332;  United  States  v.  Macomb,  5  McLean 

O'Brian  v.  Com.,  6  Bush  (Ky.)  563,  C.  C.  286;  Stater.  McO'Blenis,  24  Mo. 

571;   State  v.  Johnson,  12  Nev.  121,  402;  State  v.  Byers,  16  Mont.  565,  41 

123;  State  v.  Able,  65  Mo.  357;  Sulli-  Pac.  Rep.  708. 

van  v.  State,  6  Tex.  App.  319.  6State  v.  Wright,  70  Iowa  152,  153; 

4  State  v.  King,  86  N.  Car.  603 ;  Mar-  McGrew  v.  State,  13  Tex.  App.  340. 


§  263  ABSENT    WITNESSE8    AND    CONTINUANCES.  321 

permissive  or  mandatory  statute,  to  admit  such  evidence  un- 
less the  death  or  insanity  of  the  witness  is  shown. 

The  mere  fact  that  the  witness  is  sick  or  out  of  the  jurisdic- 
tion, or  that  his  whereabouts  are  unknown  so  that  he  can  not 
be  reached  by  a  subpoena,  is  not  enough.1  The  authorities  are 
not  wholly  harmonious,  though  usually  now,  by  statute,  such 
evidence  is  admissible.2 

§  263.  Mode  of  proving  absence  of  witness. — The  absence  of 
a  witness  from  the  state  may  be  proved  by  circumstantial  evi- 
dence, as  by  letters  and  telegrams  alleged  to  have  been  written 
by  him  while  he  was  absent.8  The  dates  and  places  named 
therein  are  always  relevant,  though  never  conclusive.  And  all 
the  facts  proved  should  be  such  as  will  justify  a  fair-minded 
and  reasonable  man  in  believing  that  the  witness  is  really  out 
of  the  state.4  If  the  residence  of  the  absentee  is  known  his 
deposition  ought  to  be  procured.5 

If,  by  statute  or  otherwise,  the  testimony  of  an  absent  witness 
is  receivable  merely  because  his  whereabouts  can  not  be  ascer- 
tained, it  must  appear  that  diligent  search  for  him  was  made, 
and  that  neither  his  attendance  nor  his  deposition  can  be  pro- 

1  Reg.  v.  Scaife,  5  Cox  C.  C.  243,  245,  53  N.  W.  Rep.  639 ;  Perrin  v.  Wells, 
246;  McLain  v.  Com.,  99  Pa.  St.  86,  155  Pa.  St.  299;  Matthews  v.  State,  96 
97 ;  State  v.  Oliver,  43  La.  An.  1003 ;  Ala.  62, 11  So.  Rep.  203 ;  Pruitt  v.  State, 
State  v.  Staples,  47  N.  H.  113 ;  Finn  v.  92  Ala.  41,  43. 

Com.,  5  Rand.  701;    People  v.  New-  3  Conner  v.  State,  23  Tex.  A  pp.  378; 

man,  5  Hill   (N.  Y.)   295;    Brogy  v.  Carman  v.  Kelly.  5  Hun  283. 

Com.,  10  Gratt.  (Va.)  722;    Bergen  v.  4  Wheat  ».  State,  110  Ala.  68,  20  So. 

People,  17  111.426;    United  States  v.  Rep.   449;     Harwood  v   State  (Ark., 

Angell,  11  Fed.  Rep.  34,  42;    Hall  v.  1897),  37  S.W.  Rep.  304;  McCollum  v. 

State,  6  Baxt.  (Tenn.)  522,  525;   Peo-  State,  29  Tex.  App.  162, 14  S.  W.  Rep. 

pie  v.  Murphy,  45  Cal.  137;    States.  1020,  1021.     The  answers  to  inquiries 

King,  86  N.  Car.  603,  605;    Collins  v.  made  at  the  residence  of  the  missing 

Com.,  12  Bush  (Ky.)  271.  witness,  or  in  the  neighhorhood,  are 

2  Shackelford  v.  State,  33  Ark.  539,  admissible.  McCollum  v.  State,  supra; 
542;  Dolan  v.  State,  40  Ark.  454,  461;  People  v.  Rowland,  5  Barb.  (N.  Y.) 
Benson  v.   Shotwell,  103  Cal.  163,  37  449.  452. 

Pac.  Rep.  147  ;  Minneapolis  Mill  Co.  v.        5  Sullivan  v.  State,  6  Tex.  App.  319; 
Minneapolis,  etc.,  Co.,  51  Minn.  304,     Brogy  v.  Com.,  10  Gratt.  (Va.)  722. 
21— Cr.  Ev. 


322  CRIMINAL  EVIDENCE.  §  264 

cured.1    The  absence  of  a  witness  being  shown,  it  will  be  pre- 
sumed to  continue  to  the  date  of  the  trial.2 

§  264.  Absence  of  witness  procured  by  connivance — Relevan- 
cy and  use  of  evidence  of  such  witness. — Where  a  living  witness 
is  absent  by  the  procurement  or  connivance  of  the  accused,  his 
evidence  at  a  former  trial  or  before  a  coroner's  jury,  is  not  ad- 
missible for  the  accused  though  it  is  against  him.3  It  must  be 
shown  that  the  absence  was  procured,4  though  not  necessarily 
by  corrupt  means.  If  it  is  shown  that  the  witness  was  sought 
diligently  and  the  circumstances  indicate  that  he  kept  out  of 
the  way  purposely,  the  burden  of  proof  is  on  the  prisoner. 

Where  the  evidence  of  an  absent  witness  is  admissible,  if 
relevant,  it  should  be  excluded  if  it  was  irrelevant  on  the  prior 
trial,  though  through  inadvertence  its  incompetency  was  not  rec- 
ognized and  it  was  not  objected  to  at  the  earlier  trial.5  And  the 
testimony  of  one  of  defendant's  witnesses,  at  a  former  trial, 
who  is  absent  from  the  second  trial,  may,  if  he  is  deceased,  be 
used  by  the  state  in  its  own  favor,6  and,  if  the  witness  testifies 
at  the  later  trial,  to  impeach  his  credibility.7 

§  265.  Cross-examining  and  confronting  witnesses. — Be- 
cause of  the  universal  constitutional  right  of  the  accused  to 
confront  the  witnesses,  it  is  absolutely  necessary,  in  order  that 
the  testimony  of  a  deceased  or  absent  witness  may  be  admissi- 
ble at  a  subsequent  trial,  that  the  party  against  whom  it  is 
offered  should  have  had  an  opportunity  of  cross-examining  him 
at  the  earlier  trial.8     Consequently  on   the   trial   of  an  indict- 

1  State  v.  Stewart,  34  La.  An.  1037 ;  603 ;  Reg.  v.  Scaife,  17  A.  &  E.  239,  242 ; 

Summons  v.  State,  5  Ohio  St.  325;  Do-  Lord  Marley's  Case,  6  St.  Trials  170. 
Ian  v.  State,  40  Ark.  454;   Collins  v.        4  Williams  v.  State,  19  Ga.  402,  403. 
Com.,  12  Bush  (Ky.)  271;  McCollum        5Petrie  v.  Railway  Co.,  29  So.  Car. 

v.  State,  29  Tex.  App.  162,  14  S.  W.  303,  317. 

Rep.  1020;   State  v.  King,  86  N.  Car.        6  Hudson  v.  Roos,  76  Mich.  173,  180. 
603,  605 ;  People  v.  Nelson,  85  Cal.  421 ;        7  Nuzum  v.  State,  88  Ind.  599. 
State  v.  Riley,  42  La.  An.  995.  80'Brian    v.   Com.,   6    Bush  (Ky.) 

2Rixford  v.  Miller,  49  Vt.  319,  325.  563;  State  v.  Johnson,  12  Nev.  121; 

3  Reynolds  v.  United  States,  98  U.  S.  State  v.  O'Brien,  81  Iowa  88 ;  Hair  v. 

145,  155, 158 ;  State  v.  King,  86  N.  Car.  State,  16  Neb.  601, 605 ;  Brown  v.  Com., 

73  Pa.  St.  321. 


§  206  ABSENT    WITNESSES    AND    CONTINUANCES.  323 

ment  for  homicide,  the  testimony  taken  at  the  coroner's  in- 
quest, held  to  investigate  the  death,  is  not  admissible  where 
the  witness  can  not  be  produced.1 

If  the  accused  has  once  enjoyed  his  right  to  confront  wit- 
nesses his  constitutional  right  to  meet  the  witnesses  against 
him  face  to  face  is  not  violated  by  the  admission  of  the  testi- 
mony of  such  a  witness,  who  is  absent,  at  a  subsequent  trial.2 
Hence,  if  the  defendant  was  represented  by  counsel  at  the  pre- 
liminary examination  and  has  had  an  opportunity  of  cross-ex- 
amining the  witnesses,  he  has  enjoyed  his  right  to  meet  his 
accusers  face  to  face,  and  no  objection  exists  to  receiving  the 
testimony  of  deceased  or  insane  witnesses.8  But  an  opportu- 
nity to  cross-examine  is  not  shown  by  evidence  that  the  pris- 
oner's counsel  at  the  trial  was  also  present  at  the  preliminary 
examination.4  The  testimony  will  not  be  excluded  merely 
because  the  former  trial  was  conducted  under  an  unconstitu- 
tional statute  if  the  witness  was  amenable  to  the  penalty  for 
perjury  if  he  testified  falsely.5 

§  266.  Mode  of  proving  the  evidence  of  the  absent  witness — 
Substance  only  need  be  stated. — It  was  formerly  considered 
essential  that  the  person,  testifying  to  the  evidence  of  the 
absentee,  should  state  his  exact  language.6  This  rule  has  been 
relaxed.     The  exact  language  need  not  now  be  given  if  the  wit- 

^linev.  State  (Tex.,  1897),  36  S.W.  s  Lucas  v.  State,  96  Ala.  51,  11  So. 

Rep.  1099;  State  v.  Campbell,  1  Rich  Rep.  216;   Com.  v.  Cleary,  148  Pa.  St. 

(S.  Car.)  124;  Whitehurst  v.  Com.,  79  26,  23  Atl.  Rep.  1110,  1113;    Sullivan 

Va.  556;   State  v.  Cecil,  54  Md.  426;  v.  State,  6  Tex.  App.  319;  Com.v.  Keck, 

McLain  v.  Com.,   99  Pa.  St.  86,  97;  148  Pa.  St.  639;   State  v.  McO'Blenis, 

Dupree  v.  State,  33  Ala.  380.    In  State  24   Mo.   402;    State  v.   Fitzgerald,   63 

p.  McNeil,  33  La.  An.  1332,  the  accused  Iowa  268;   People  ».  Newman,  5  Hill 

was  permitted  to  introduce  testimony  (N.  Y.)  295. 

received  at  the  coroner's  inquest.  4  Jackson  v.  Crilly,  16  Colo.  103, 109. 

2  Com.  0.  Richards,  18  Pick.  (Mass.)  5  State  v.  Johnson.  12  Nev.  121,  124. 

434,  438;  State  v.  McO'Blenis,  24  Mo.  61  Greenleaf   on  Ev.,  §  165;  Rex  r. 

402 ;  People  v.  Penhollow,  42  Hun  103,  Jolliffe,4Term.  Rep.  290 ;  Montgomery 

106.     Depositions  once  legally  taken  ?».  State,  11  Ohio  424;  United  States  v. 

may  be  used  in  a  subsequent  trial.  Wood,   3  Wash.  C.  C.  440;   Com.  v. 

Johnson  v.  State,  1  Tex.  App.  333.  Richards,  18  Pick.  434,  438. 


324  CRIMINAL    EVIDENCE.  §266 

ness  can  state  accurately  the  substance  of  what  was  said,1  and 
his  claiming  to  repeat  verbatim  what  was  said  might  be  a  suspi- 
cious circumstance.2  It  is  safe  to  assume,  however,  that  all 
the  evidence  of  the  witness  bearing  upon  any  particular  point, 
must  be  repeated  in  language  as  nearly  identical  with  that 
originally  used  as  possible,  so  that  the  effect  which  is  produced 
may  correspond  with  the  impression  made  upon  the  jury  by 
the  testimony  of  the  witness  at  the  former  trial.  Hence  the 
evidence,  which  was  elicited  upon  the  cross-examination  of  the 
witness,  must  be  substantially  repeated.3  A  witness  who  is  re- 
lating the  substance  of  the  evidence  of  an  absent  witness, 
should  be  required  to  state  all  the  material  facts  concerned  in 
the  issue  in  the  later  trial,  so  that  his  testimony  may  not  pre- 
sent the  evidence  of  the  absent  witness  in  a  loose  and  frag- 
mentary condition,  or  suggest  that  some  important  part  has 
been  forgotten.  If,  however,  the  memory  of  the  witness  is 
weak  as  to  incidental  or  immaterial  facts,  the  court  should  not 
therefore  exclude  the  testimony;  for,  if  it  appears  complete  and 
substantially  inclusive  of  what  was  said,  it  should  go  to  the 
jurors.  Slightinaccuracies,  omissions  or  contradiction,  are  for 
them  to  consider  in  estimating  its  weight  and  credibility.  But 
where,  from  the  language  or  demeanor  of  the  witness,  it  is  ob- 
viously apparent  that  he  has  forgotten  the  substance  of,4  or 
has  intentionally  omitted  a  material  part  of  what  was  said,5  he 
is  incompetent.  Because  of  lack  of  facilities  in  early  times  for 
taking  down  testimony  in  writing  with  rapidity  and  correct- 
ness it  was  a  universal  custom,  and  in  fact  a  rule  of  the  com- 
mon law,  to  receive  only  the  oral  narrative  of  a  person  who 

1  State    v.    O'Brien,    81    Iowa    88;  derhill  on  Ev.,  p.  171,  note  4.  Theob- 

People  v.  Murphy,  45  Cal.  137;  State  jection  that  the  witness  fails  to  re- 

v.  Hooker,  17  Vt.  658;  Brown  v.  Com.,  member    the     cross-examination     is 

73    Pa.   St.   321 ;    State    v.    Able,    65  waived    if    not    made    immediately. 

Mo.  357,  369,  373;  Davis  v.  State,  17  State  v.  O'Brien,  81  Iowa  88,  46  N.  W. 

Ala.  354,  357 ;   Com.  v.  Goddard,   80  Rep.  752. 

Mass.  402;  Jackson  v.  State,  81  Wis.  4Puryear  v.  State,  63  Ga.  692;  Bush 

127.  v.   Com.,  80  Ky.  244,  3  Cr.  L.   Mag. 

2 Cornell  v.  Green,  10  S.  &  R.  (Pa.)  505,  506,  507. 

14;  Ruch  v.  Rock  Island,  97  U.  S.  693.  5Tharp  v.  State,  15  Ala.  749;  Com. 

9  Wade  v.  State,  7  Baxt.  (Tenn.)  80,  v.  Richards,  18  Pick.  (Mass.)  434,  438, 

81;  and,  see  civil  cases  cited  in  Un-  439. 


§  2G7  ABSENT    WITNESSES    AND    CONTINUANCES.  325 

heard   the  testimony  on  the  former  trial  as  the  best  and  per- 
haps the  only  evidence  of  it. 

§207.  Stenographer's  notes,  judge's  minutes  and  bill  of  ex- 
ceptions when  used  to  prove  the  evidence  of  the  absent  wit- 
ness.— The  employment  of  a  court  stenographer  whose  duty  it 
is  to  take  the  oral  evidence  is  now  nearly  universal.  He  is  a 
sworn  officer,  and  his  notes,  or  transcripts  thereof,  possess  an 
official  character  which  renders  them  of  great  value  in  case  of 
the  subsequent  death  or  absence  of  a  witness.  If  a  statute  pro- 
vides for  thus  preserving  evidence,  the  production  of  such  rec- 
ords on  a  subsequent  trial  may  be  required  as  the  best  proof.1 
If  the  stenographer's  notes  are  not  made  evidence  by  statute, 
either  expressly  or  by  necessary  implication,  they  are  not  ad- 
missible as  such  while  he  is  alive;2  though,  perhaps,  after  his 
death  they  might  be  received  as  the  entries  of  a  third  person 
made  in  the  course  of  his  employment.3  If  the  reporter  is 
called  as  a  witness  they  may  be  used  to  refresh  his  memory, 
and  may  even  be  read  by  him  on  the  stand,  if  he  can  swear  they 
were  made  when  the  testimony  was  taken,  contain  its  substance 
and  are  accurate.4 

A  stenographer's  notes  taken  out  of  the  jurisdiction,5  or  not 
made  by  or  under  the  direction  of  a  magistrate,  or  signed  by 
the  witnesses,  or  taken  from  the  lips  of  an  interpreter  where  a 
witness  testifies  in  a  foreign  tongue,6  have  been  rejected.  But 
the  oral  testimony  of  the  stenographer  after  refreshing  his 
memory  by  notes  is   alwrays  admissible,  though  his  notes  may 

1  Sage  v.  State,  127  Ind.  15 ;  Jackson  2  State  v.  Frederic,  69  Me.  400 ;  Peo- 

v.  State,  81  Wis.  127,  51  N.  W.  Rep.  pie  v.  McConnell,  146  111.  532;  Rounds 

89;    Burnett    v.    State,    87   Ga.   622;  v.  State,  57  Wis.  45,  47,  52. 

Matthews  v.  State,  96  Ala.  62,  11  So.  3  Underbill  on  Ev.,  §§58,  146. 

Rep.   203;  Sullivan   v.   State,  6  Tex.  4People   v.  Sligh,  48   Mich.  54,58; 

App.  319.     Unless  the  statute  in  terms  Jackson  v.  State,  81  Wis.  127;  Com. 

provides  that  the  notes  are  evidence  v.   Goddard,  80  Mass.   402;    Hair  v. 

when  certified  by  the  reporter,  they  State,  16    Neb.   601,    606;  Horton   v. 

must  be   authenticated   in   the  mode  State,  53  Ala.  488. 

prescribed  for  the  authentication   of  5  Herrick  v.  Swomley,  56  Md.  439. 

judicial  records.     Rounds  v.  State,  57  6 People  v.  Ah  Yute,  56  Cal.  119. 
Wis.   45;  State    v.    Frederic,  69   Me. 
400.     See  Underbill  on  Ev.,  §  146. 


326  CRIMINAL  EVIDENCE.  §  268 

not  be  evidence,1  even  though  their  correctness  be  not  shown .  B  ut 
the  notes  must  be  shown  to  the  opposite  party,  and  he  must  have 
an  opportunity  to  cross-examine  to  test  their  accuracy.2  It  is 
never  permissible  on  the  later  trial  to  show  contradictory  state- 
ments to  impeach  the  testimony  of  an  absent  witness.  The 
law  requires  that  the  witness  himself  should  be  interrogated, 
giving  the  particulars  of  the  time  and  place  of  the  contradictory 
utterances.3 

The  judge's  notes  are  not  evidence  of  what  the  witness  said, 
and,  as  a  rule,  they  can  be  used  only  to  refresh  the  memory  of 
a  witness.4  Their  incompetency  is  due  to  the  fact  that  they 
are  not  a  part  of  the  record,  and  are  not  made  within  the  scope 
of  official  duty,  or  under  the  sanction  of  an  official  oath,  which 
would  guaranty  that  they  are  complete  or  correct.  For  the 
same  reasons  if  it  is  sought  to  show,  by  the  bill  of  exceptions 
or  case  on  appeal,  the  testimony  of  an  absent  witness,  a  foun- 
dation must  first  be  laid  by  proving  (and  for  this  purpose  the 
certification  and  authentication  by  the  court  in  accordance  with 
the  statute  is  usually  sufficient)  that  the  bill  does  actually  con- 
tain all  the  evidence  given  by  the  witness.5  It  is  a  preliminary 
question  for  the  court,  upon  which  it  is'  error  to  refuse  or  neg- 
lect to  rule,  whether  in  any  case  it  is  proper  to  admit  the  testi- 
mony of  the  witness  given  at  a  prior  proceeding.6 

§  268.  Continuance  when  granted  because  of  absence  of  wit- 
ness— Discretionary  power  of  the  court. — The  rules  governing 
continuances  are  substantially  the  same  in  criminal  and  civil 

1  State  v.  Freidrich,  4  Wash.  204,  29  27  Am.  Dec.  371;  Regina  v.  Child,  5 
Pac.  Rep.  1055 ;  People  v.  Chung  Ah  Cox  C.  C.  197,203.  See,  also,  civil 
Chue,  57  Cal.  567;  State  v.  Baldwin,     cases  in  Underhill  on  Ev.,  p.  172. 

36  Kan.  1,  12  Pac.  Rep.  318;  Shackel-  5  Kean  v.  Com.,  10  Bush  (Ky.)  190; 

ford  v.  State,  33  Ark.  539.      Cf.  note  State  v.  Able.  65  Mo.  357;   Woolen  v. 

4,  p.  325.  Wire,  110  Ind.  251 ;  Case  v.  Blood,  71 

2  People  v.  Lem  You,  97  Cal.  224,  32  Iowa  632;  Slingerland  v.  Slingerland, 
Pac.  Rep.  11.  46  Minn.  100, 103;  Dwyerv.  Rippetoe, 

3Pruitt   v.    State,    92    Ala.  41,  43;  72  Tex.  520.     And  cases  cited  Under- 

Matthews  v.  State,  96  Ala.  62,  U  So.  hill  on  Ev.,  p.  172. 

Rep.  203.  6  People  v.  Willett,  92  N.  Y.  29. 

4  State  v.  Dewitt,  2  Hill  (S.  C.)  282, 


§  268  ABSENT    WITNESSES    AND    CONTINUANCES.  327 

cases,1  but  generally  in  the  former  an  application  for  a  contin- 
uance, coming  from  the  accused,  may  be  scanned  with  some 
suspicion  because  of  his  natural  desire  for  delay.2 

Neither  the  defendant  nor  the  prosecution  can  claim  to  have 
unlimited  continuances  granted.  A  continuance  is  not  always 
a  matter  of  right.  It  lies  in  the  sound  discretion  of  the  trial 
court  to  grant  and  its  action  will  not  be  reviewed,  or  a  new  trial 
granted  to  the  defendant,  for  a  refusal  to  grant  a  continuance, 
unless  there  has  been  a  palpable  abuse  of  that  discretion  to  his 
disadvantage.8 

This  general  principle,  however,  must  be  taken  with  the 
qualification  that  the  discretion  of  the  court  must  be  exercised 
in  a  reasonable  and  not  in  an  arbitrary  or  capricious  manner. 
The  statutory  and  constitutional  rights  and  privileges  of  the 
prisoner  must  be  considered.  His  right  to  a  fair  and  impartial 
jury  trial,  to  procure  and  compel  the  attendance  of  witnesses,  to 
be  represented  by  counsel,  and  to  have  a  reasonably  full  oppor- 
tunity to  consult  with  counsel  and  to  prepare  his  defense;  must 
be  respected,  and  a  refusal  to  grant  a  continuance,  which 
results  in  depriving  him  of  any  of  these  rights,  constitutes 
reversible  error.4  Often  the  matter  is  regulated  by  statute  un- 
der which  a  continuance  is  granted  as  a  matter  of  right.  All 
defendants  jointly  tried  are,  under  such  a  statute,  entitled  to 
the  same  privilege  in  this  respect. 

1  People  v.  Vermilyea,  7  Cow.  (N.Y.)  Jackson  v.  State,  54  Ark.  243 ;  Wool- 
369,  384.  folk  v.  State,  85  Ga.  69;  Thompson  v. 

2  Ballard  v.  State,  31  Fla.  266,  282,     Com.,  88  Va.  45. 

12  So.  Rep.  865.  4  Claxon  v.  Com.  (Ky.,  1895),  30  S. 

3  State  i'.  Johnson,  47  La.  An.  1225;  W.  Rep.  998;  State  v.  Newsum,  129 
State  v.  Dettmer,  124  Mo.  426,  432;  Mo.  154;  Delk  v.  State  (Ga.,  1897).  27 
People  v.  Considine,  105  Mich.  149,  63  S.  E.  Rep.  152.  No  constitutional  objec- 
N.  W.  Rep.  196;  State  v.  Lucker,  40  tions  can  exist  to  a  statute  permit tin.tr 
S.  Car.  549,  550;  Walker  v.  State,  136  a  party  to  avoid  a  continuance  by  ad- 
Ind.  663,  666;  Walker?'.  State,  91  Ala.  mitting  an  absent  witness  will  testify, 
76,  79;  Ballard  v.  State,  31  Fla.  266,  in  a  civil  case,  as  alleged  in  the  affida- 
281;  Brown  v.  State,  1  Pickle  (Tenn.)  vit.  But  the  action  of  tbe  legislature,  in 
85  Tenn.  439;  Hardesty  v.  Com.,  88  making  such  a  statute  apply  to  crimi- 
Ky.  539;  State  v.  Wyse,  33  S.  Car.  nal  trials,  is  unconstitutional.  Gra- 
582;    Price   v.   People,   131   111.   223;  ham  v.  State,  50  Ark.  161.  167. 


328 


CRIMINAL    EVIDENCE. 


§   2G9 


§  209.  Due  diligence  in  summoning  witness  must  be  proved 
— The  competency  and  materiality  of  his  testimony  must  ap- 
pear. — In  order  to  obtain  a  continuance  because  of  the  absence 
of  a  witness,  certain  facts  must  appear  from  tbe  affidavits  pre- 
sented in  support  of  the  motion. 

First,  it  must  be  shown  that  due  diligence  was  employed  to 
ascertain  his  whereabouts  and  secure  his  attendance.  The  de- 
fendant should  promptly,  upon  his  arrest,  ascertain  who  and 
where  his  witnesses  are,  and  should  procure  subpoenas  or  attach- 
ments for  them  as  soon  thereafter  as  practicable.  He  has  no 
right  to  delay  until  a  few  days  before  the  trial,  and  to  demand  a 
postponement  because  his  witnesses  do  not  attend.1 

The  competency  and  materiality  of  the  testimony  which  the 
absent  witness  is  expected  to  give  must  also  be  shown.  It 
must  reasonably  appear  that  the  testimony  of  such  a  witness 
will,  if  introduced,  influence  the  verdict.2 

If  from  the  evidence  already  received  it  is  apparent  that  the 
absent  witness  has  no  knowledge  of  the  matter  in  issue,3  or  if 
the  evidence  to  be  procured  is  merely  cumulative,4  or  if  the 

898;  State  v.  Bennett,  52  Iowa  724,  2 
N.  W.  Rep.  1103;  State  v.  Falconer, 
70  Iowa  416;  People  v.  Anderson,  53 
Mich.  60,  18  N.  W.  Rep.  561 ;  Moody 
v.  People,  20  111.  316 ;  Steele  v.  People, 
45  111.  152;  State  v.  Turlington,  102 
Mo.  642 ;  Strauss  v.  State,  58  Miss.  53 ; 
People  v.  Yermilyea,  7  Cow.  (N.  Y.) 
369;  State  v.  Spillman,  43  La.  An. 
1001.  For  example,  a  continuance 
will  be  refused  in  a  murder  trial 
where  the  absent  witness  was  expect- 
ed merely  to  prove  that  unknown  per- 
sons had  threatened  the  deceased. 
Boyett  v.  State,  26  Tex.  App.  689,  9  S. 
W.  Rep.  275 ;  Stapleton  v.  Com.(Ky.), 
3  S.  W.  Rep.  793. 

3  Griffin  v.  State  (Tex.,  1893),  20  S. 
W.  Rep.  552;  Jones  v.  State,  31  Tex. 
Cr.  App.  177;  Childs  v.  State  (Tex., 
1893),  22  S.  W.  Rep.  1039. 

4  Nelms  v.  State,  58  Miss.  362;  Var- 
nadoe  v.  State,  67  Ga.  768. 


1  Chapman  v.  State  (Tex.,  1895),  30 
S.  W.  Rep.  225;  State  v.  Lange,  59 
Mo.  418 ;  Pullen  v.  State,  11  Tex.  App. 
89;  Pettitw.  State,  135  Ind.  393,405, 
406;  State  v.  Hagan,  22  Kan.  490; 
Mackey  v.  Com.,  80  Ky.  345;  Wray 
v.  People,  78  111.  212 ;  Trask  v.  People, 
151  111.  523,  527;  State  v.  Smith,  8 
Rich  (S.  Car.)  460;  State  v.  Dixon,  47 
La.  An.  1,  3;  Blige  v.  State,  20  Fla. 
742;  McDermott  v.  State,  89  Ind.  187; 
State  v.  Veillon  (La.,  1897),  21  So. 
Rep.  856. 

The  burden  of  proof  to  show  diligence 
is  on  the  accused.  Walker  v.  State, 
13  Tex.  App.  618. 

2  Gilcrease  v.  State,  33  Tex.  Cr.  Rep. 
619;  Cannon  v.  State,  60  Ark.  564, 
576;  Land  v.  State,  34  Tex.  Cr.  Rep. 
330,  30  S.  W.  Rep.  788;  Crumpton  v. 
United  States,  138  U.  S.  361 ;  Dow  v. 
State,  31  Tex.  Cr.  Rep.  278;  Knowles 
v.  State,  31  Tex.  Cr.  Rep.  383;  Polin 
v.  State,  14  Neb.  540,  16  N.  W.  Rep. 


§270 


ABSENT    WITNESSES    AND    CONTINUANCES. 


329 


court  has  sufficient  reason  for  believing  that  certain  facts 
which  the  absent  witness  is  expected  to  controvert  are  already 
so  far  sustained  by  a  preponderance  of  the  evidence  that  his 
testimony  bearing  thereon  would  be  untrue,1  a  continuance 
may  be  denied.2 

§  270.  What  facts  the  affidavit  for  continuance  must  con- 
tain.— The  affidavit  for  the  continuance  must  show  the  names 
of  the  absent  witnesses  and  their  residences,  if  known,3  and 
the  specific  facts  to  which  the  witnesses  will  testify,  their  con- 
nection with  and  relevancy  to  the  subject-matter.4  Merely  to 
allege  in  the  affidavit  that  proper  diligence  has  been  employed 
to  procure  the  attendance  of  the  witness  is  not  enough.  Facts 
constituting  diligence  must  appear.  Thus  where  it  appears 
that  the  witness  was  at  one  time  in  the  jurisdiction  of  the  court 
it  must  appear  that  a  subpoena  was  seasonably  and  properly 
issued  and  duly  served  on  him  to  procure  his  attendance.5    But 


1  Brown  v.  State,  32  Tex.  Cr.  App. 
119;  Rollins  v.  State  (Tex.,  1893),  20 
S.  W.  Rep.  358;  Barroum  v.  State 
(Mass.,  1897),  22  So.  Rep.  62. 

2  It  has  been  held  not  error  to  re- 
fuse the  accused  a  continuance  asked 
merely  to  enable  him  to  procure  wit- 
nesses to  pi'ove  his  good  character. 
Steele  v.  People,  45  111.  152;  McNea- 
ly  v.  State,  17  Fla.  198. 

3  State  v.  Underwood,  76  Mo.  630; 
Colton  v.  State,  7  Tex.  App.  50. 

4  Long  v.  People,  135  111.  435;  State 
v.  Manceaux,  42  La.  An.  1164;  Car- 
thausv.  State,  78  Wis.  560;  State  v. 
Benge,  61  Iowa  658;  Holland  v.  State, 
31  Tex.  Cr.  Rep.  345.  That  the  wit- 
ness has  knowledge  of  such  facts. 
Long  r.  People,  34  111  App.  481 ;  Benge 
v.  Com.,  92  Ky.  1,  17  S.  W.  Rep.  146. 
That  me  affiant  believes  the  evidence 
of  the  witness  to  be  true.  State  v. 
Dusenberry,  112  Mo.  277;  North  v. 
People,  139  111.  81.  That  he  also  be- 
lieves that  his  testimony  can  be  pro- 


cured in  time,  stating  the  grounds  for 
such  belief.  Shirwin  v.  People,  69 
111.  55;  Austine  ».  People,  110  111.248; 
Stater.  Harrison,  36  W.Va.  729;  Peo- 
ple v.  McCrory,  41  Cal.  458;  Skates  v 
State,  04  Miss.  644;  State  v.  Moultrie, 
33  La.  An.  1146;  State  v.  Burwell,  34 
Kan.  312,8Pac.  Rep.  470;  Faulknerr. 
Territory,  6  N.  Mex.  464,  30  Pac.  Rep. 
905;  State  v.  Aired,  115  Mo.  471,  22 
S.  W.  Rep.  363,  and  that  proper  dili- 
gence has  been  employed  to  procure 
the  attendance  of  the  witness.  Hav- 
erstick  v.  State,  6  Ind.  App.  595,  32 
N.  E.  Rep.  785;  Vogt  v.  Com.,  92  Ky. 
68,  17  S.  W.  Rep.  213.  That  the  wit- 
nesses are  not  absent  through  the  pro- 
curement or  consent  of  the  applicant, 
and  that  the  application  is  not  made 
for  delay.  Crews  v.  People,  120  111. 
317;  State  v.  Bradley,  90  Mo.  160.  See 
Underhill  on  Ev.,  §§  355-358,  as  to  the 
form  and  language  of  affidavits. 

5  Henderson  v.  State,  22  Tex.  593; 
Dingman   r.  State,  48  Wis.  485;  State 


330  CRIMINAL  EVIDENCE.  §  271 

under  some  circumstances  actual  service  of  a  subpoena  is  not 
required,  if  it  be  shown  that  one  was  issued  and  seasonably 
delivered  to  the  proper  officer  for  service,  and  that  he  has  made 
a  return  thereon  that  the  witness  can  not  be  found.1 

If  a  witness  is  bound  over  to  appear,  the  accused  is  not  under 
the  necessity  of  serving  him  with  a  subpoena.  But  the  fact  that 
the  magistrate,  at  the  preliminary  examination,  admonished  a 
witness  to  attend  at  the  trial  does  not  excuse  the  defendant 
from  serving  him  with  process  and  then  demanding  a  contin- 
uance because  of  his  absence.2 

§  271 .  Admissions  to  avoid  continuance — Constitutional  right 
of  the  accused  to  enjoy  the  benefit  of  oral  testimony. — The  au- 
thorities are  divided  on  the  question  whether  the  state  can 
defeat  the  defendant's  motion  for  a  continuance  to  procure  the 
testimony  of  an  absent  witness  by  a  mere  admission  that  he 
will  testify  to  the  facts  which  the  affidavit  states  the  defendant 
expects  to  prove.  Some  of  the  cases,  basing  their  reasoning 
upon  the  existing  constitutional  guarantee  that  the  prisoner 
shall  have  the  personal  presence  of  witnesses  in  his  own  behalf, 
maintain  the  negative.  Hence,  it  has  been  repeatedly  held 
that  a  statute  providing  that  the  defendant  shall  not  be  enti- 
tled to  a  continuance  if  the  state  shall  consent  that  the  affidavit 
stating  the  evidence  which  he  is  to  give  may  be  read  as  his 
testimony  is  unconstitutional,  if  the  defendant  has  used  due 
diligence  in  endeavoring  to  procure  the  attendance  of  the  wit- 
ness, and  the  affidavit  shows  facts  sufficient  for  the  purpose.3 

v.Burns,  54  Mo.  274;  Roussell  v.  Com.,  162,    167;    State   v.    Baker,    13    Lea 

28  Gratt.  (Va.)  930.  (Term.)   326,   329;   Pace  v.  Com.,  89 

1  Murray  v.  State,  1  Tex.  App.  417 ;  Ky.  204,  207.  Cf.  State  v.  Loe,  98  Mo. 
Skipworth  v.  State,  8  Tex.  App.  135 ;  609,  613 ;  Goodman  v.  State,  Meigs 
Thomas  v.  State,  61  Miss.  60;  People  (Tenn.)  195.  "The  constitutional 
v.  Lampson,  70  Cal.  204;  State  v.  right  of  the  accused  to  have  process  to 
Walker,  69  Mo.  274;  Walton  v.  Com.,  compel  the  attendance  of  witnesses  in 
32  Gratt.  (Va.)  855.  his  own  behalf  is  absolute,  and  can 

2  State  v.  Hayden,  45  Iowa  11;  Peo-  not  be  bartered  or  cut  down  by  stat- 
ple  v.  Brown,  46  Cal.  102.  utory  enactment.     The  right  is  only 

3  State  v.  Berkley,  92  Mo.  41,  46-53 ;  enjoyed  with  completeness  if  the  per- 
Adkins  v.  Com.,  98  Ky.  539,  33  S.  W.  sonal  attendance  of  a  witness  is  se- 
Rep.  948;  Graham  v.  State,   50  Ark.  cured,   for  it  is  only  then  that  the 


§272 


ABSENT    WITNESSES    AND    <"<>NTINUAN<   EH. 


331 


Others  maintain  a  contrary  view  and  sustain  as  constitu- 
tional similar  statutes,  conferring  upon  the  court  the  power  to 
overrule  an  application  for  a  continuance,  where  the  prosecu- 
tion does  not  admit  that  the  missing  testimony  is  true.1 

If  the  absent  witness  is  beyond  the  jurisdiction,  so  that  com- 
pulsory process  will  not  reach  him,  a  continuance,  as  it  would 
only  bring  his  written  evidence,  may  be  denied  on  the  admis- 
sion.2 


§  272.    Admission  of  facts  as  true  to  avoid  continuance. — In 

the  absence  of  statute  it  is  the  rule,  according  to  the  decided 
current  of  authority,  that  the  state  may  avoid  the  granting  of 
a  continuance  to  defendant  because  of  the  absence  of  a  mate- 
rial witness  in  his  behalf  by  admitting  the  truth  of  the  state- 
ment of  the  evidence  he  would  give  as  it  is  set  forth  in  the 
affidavit.  The  statements  go  to  the  jury  as  true,  and  it  is  their 
positive  duty  so  to  regard  them.  They  are  not  open  to  contra- 
diction, and  though  the  accused  is  deprived  of  his  witness  he 


accused  can  receive  the  full  benefit  of 
his  testimony.  The  demeanor  of  the 
witness  on  the  stand  while  giving  his 
testimony  viva  voce  is  an  important 
factor  in  enabling  the  jury  to  deter- 
mine his  credibility.  The  defendant 
has  a  right  to  claim  that  the  influence 
upon  the  jury  of  the  intelligence  and 
candor  of  his  witness,  his  respectable 
and  refined  appearance,  his  prompt- 
ness and  frankness  in  answering 
questions,  his  unhesitating  readiness 
in  giving  all  details,  his  calmness  and 
self-restraint  under  a  searching  and 
perhaps  abusive  cross-examination, 
shall  not  be  lost  to  him  by  a  statute 
whicli  compels  him  to  accept  a  piece 
of  paper  in  place  of  a  living  human 
being."  See  State  v.  Berkley,  92  Mo. 
41,  46-53;  Pace  v.  Com.-,  89  Ky.  207- 
210;  a  leading  case  and  the  dissent- 
ing opinion  in  State  v.  Jennings,  81  Mo. 
185, 193,  195-208.  "  The  value  of  oral 
testimony  over  all  others  is  too  well 
understood  to  suppose  for  a  moment 


that  such  declarations  would  have  the 
same  weight  on  the  minds  of  the  jury 
as  the  testimony  of  the  witness  if  he 
had  been  examined  before  them  in 
open  court."  People  v.  Diaz,  6  Cal. 
248.    Cf.  Goodman  v.  State,  Meigs  195. 

1  Keating  r.  People,  160  111.  480,  43 
N.  E.  Rep.  724;  Adkins  v.  Com.,  98 
Ky.  539,  33  S.  W.  Rep.  948;  People  v. 
Leyshon,  108  Cal.  440;  Fanton  v. 
State  (Neb.,  1897),  69  N.  W.  Rep.  953; 
Territory  v.  Perkins,  2  Mont.  467,  470; 
Territory  v.  Harding,  6  Mont.  323, 
332,  333,  Bach,  J.,  dissenting;  Terri- 
tory v.  Guthrie,  2  Idaho  398;  Hoyt  v. 
People,  140  111.  588,  593,  594;  Hickam 
v.  People,  137  111.  75,  79;  State  v.  Bart- 
ley,  48  Kan.  421,  425,  citing  cases; 
State  v.  Shannehan,  22  Iowa  435,  437; 
State  v.  McComb,  18  Iowa  43,  47.  Cf. 
Pace  v.  Com.,  89  Ky.  207;  State  v. 
Lund,  49  Kan.  580,  584 ;  State  v.  Dan- 
iel (La.,  1897),  22  So.  Rep.  415. 

2  State  v.  Adams,  20  Kan.  311; 
Thompson  v.  State,  5  Kan.  159. 


132 


CRIMINAL    EVIDENCE. 


§272 


receives  the  benefit  of  his  evidence  free  from  impeachment.1 
And  a  statute  laying  down  such  a  rule  has  been  held  constitu- 
tional. But  the  state  must  admit  the  truth  of  the  evidence  ab- 
solutely. It  can  not  reserve  the  right  to  impeach  its  credibil- 
ity in  any  way.2 


lowers  v.  State,  80  Ind.  77,  80; 
Pace  v.  Com.,  89  Ky.  207,  208 ;  O'Brien 
v.  Com.,  89  Ky.  354,  361 ;  Browning  v. 
State,  33  Miss.  47,  71 ;  Van  Meter  v. 
People,  60  111.  168,  170;  Miller  v. 
State,  9  Ind.  340;  People  v.  Vermil- 
yea,  7  Cow.  (N.  Y.)  369;  Wassels 
v.  State,  26  Ind.  30,  33 ;  People  v.  Diaz, 
6  Cal.  248,  249;  Trulock  v.  State,  1 
Clarke  (Iowa)  515,  519;  State  v.  Ba- 
ker, 13  Lea  326,  329 ;  People  v.  Brown, 
54  Cal.  243,  245 ;  People  v.  Wilson,  3 
Park.  Cr.  Rep.  199,  202;  Nichols  v. 
Com.,  11  Bush  (Ky.)  575. 

2  People  v.  Diaz,  6  Cal.  248,  249; 
Wassels  v.  State,  26  Ind.  30;  Powers 
v.  State,  80  Ind.  77,  80.     Cf.  Burch- 


field  v.  State,  82  Ind.  580,  584.  "An 
unconditional  admission  of  the  truth 
of  the  facts  sought  to  be  proved  by 
the  absent  witness  would  necessarily 
cause  those  facts  to  go  to  the  jury  as 
admitted  facts  in  the  case,  not  open  to 
controversy,  and  it  would  be  the  posi- 
tive duty  of  the  jury  so  to  consider 
them  in  determining  the  question  of 
the  defendant's  guilt.  Such  an  admis- 
sion would,  we  think,  give  the  ac- 
cused all  the  benefit  he  could  desire 
from  the  witness  if  he  were  present  at 
the  trial."  Wassells  v.  State,  26  Ind. 
30,  35;  Mayfield  v.  State,  110  Ind.  591, 
593. 


CHAPTER  XXII. 

THE  PROVINCE  OK  JUDGE  AND  JURY. 

§273.  The  power  and  right  of  the  §276.  Charging  on  the  evidence. 

jury  to  determine  the  law —  277.  Assumption  of  facts  in  charge. 

Criminal  libel.  278.  Necessity  for  evidence  to  sus- 

274.  Character  and   analysis  of    a  tain  instructions. 

general  verdict.  279.   Directing  a  verdict. 

275.  Charging  the  jury  on  the  law        280.   Order   and   manner  of    intro- 

—  Physical     power    of     the  ducing  the  proof. 

jury  to  disregard  the  judge's 

charge. 

§  273.  The  power  and  right  of  the  jury  to  determine  the  law 
— Criminal  libel. — The  main,  if  not  the  sole,  purpose,  of  the 
introduction  of  evidence  in  criminal  trials,  is  to  determine  dis- 
puted questions  of  fact.  If  the  facts  constituting  the  case  for 
the  plaintiff  in  a  civil  action  are  admitted  by  a  demurrer,  or  if 
the  matter  in  defense  constitutes  no  defense  in  law,  or  if  the 
jury  find  a  special  verdict,  a  pure  question  of  law  arises  which 
is  exclusively  for  the  judge  to  determine.  This  is  universally 
the  rule  in  all  civil  proceedings.  The  jury  are  bound  to  take 
the  law  from  the  court's  instruction,  and  a  verdict  rendered  by 
them  which  is  palpably  against  the  law  will  be  set  aside. 
Whether  a  jury  selected  to  try  a  criminal  case  are  under  any  cir- 
cumstances judges  of  the  law,  in  the  sense  that  they  are  judges 
of  the  issue  of  fact,  is  a  question  which  has  received  much  at- 
tention. The  subject  received  much  investigation  and  was  de- 
bated with  vast  learning  and  a  great  expenditure  of  eloquence 
and  ability  in  England  at  the  end  of  the  last  century,  in  the 
numerous  prosecutions  for  criminal  libel  which  were  brought 
by  the  crown.  It  was  admitted  by  all  parties  that  the  ques- 
tion, Did  the  accused  publish  the  libel?  and  its  meaning,  were 

(333) 


334  CRIMINAL  EVIDENCE.  §  274 

exclusively  questions  of  fact  for  the  determination  of  the  jury. 
The  controversy  turned  upon  the  right  to  determine  whether 
the  tendency  of  the  publication  was  or  was  not  mischievous, 
and  the  intent  of  the  accused  in  publishing  it.  On  the  one 
hand,  it  was  held  that  the  court  had  the  exclusive  right  to  de- 
cide that  the  libel  was  or  was  not  calculated  to  produce  mis- 
chief, and  that  the  accused  intended  that  it  should  do  so.  On 
the  other,  it  was  maintained  that  the  question  of  mischievous 
tendency  and  criminal  intent  were,  as  in  all  other  crimes, 
mixed  questions  of  law  and  fact  to  be  tried  by  the  jurors,  under 
proper  instructions  from  the  bench.1 

So  far  as  the  question  of  the  right  of  jurors  to  determine  the 
law  in  prosecutions  for  criminal  libel  is  concerned,  it  may  be 
considered  as  set  at  rest  by  the  various  constitutional  pro- 
visions that  in  such  cases  the  jurors  shall  have  the  right  to  de- 
termine both  the  law  and  the  facts.  If  the  constitution  pro- 
vides that  the  jury  shall  be  judges  of  the  law,  "as  in  other 
cases,"  or  may  determine  questions  both  of  law  and  fact 
"  under  the  direction  of  the  court,"  it  is  very  clear  that  it  was 
intended  merely  to  place  criminal  libel  on  the  same  footing  as 
other  crimes,  and  that  the  jury,  while  having  the  right  to  de- 
termine the  intention  of  the  accused,  as  well  as  the  facts  of 
publication,  must  receive  the  law  from  the  court.2 

§  274.    Character  and  analysis  of  general  verdict. — By  the 

plea  of  not  guilty  both  the  law  and  the  facts  are  put  in  issue. 

1  See  Rex  v.  Woodfall,  5  Burr.  2661 ;  N.  H.  536 ;  People  v.  Croswell,  3  John. 

Rex  v.  Dean  of  St.  Asaph's,  3 T.  R.  428;  Ca.  (N.  Y.)  337,  394. 

State  v.  Croteau,  23  Vt.  14;  Com.  v.  2Cooley's    Cons.   Limit.,    567.     By 

Anthes,  5  Gray  (Mass.)  185,  212,  219.  constitutional  enactment  in  some  of 

For  other  cases  bearing  upon  this  sub-  the  states,  the  right  to  determine  the 

ject,  see  United  States  v.  Battiste,  2  law  as  well  as  the  facts  is  conferred 

Sumn.  (U.  S.)  240,  243;  United  States  upon   the    jury  in   a  criminal    case. 

v.  Morris,  1  Curt.  (U.  S.)  23;  Penn.  v.  Blaker  v.   State,    130  Ind.  203,  204; 

Bell,  Add.  155;  Penn.  v.  McFall,  Add.  Goldman  v.  State,   75  Md.  621,  623, 

(Pa.)  255 ;  Townsend  v. State,  2  Blackf .  23  Atl.  Rep.  1097 ;  State  v.  Armstrong, 

(Ind.)  151;    Hamilton  v.   People,  29  106  Mo.  395,  418-421,  16  S.  W.  Rep. 

Mich.  173;  Com.  v.  Knapp,  10  Pick.  604. 
(Mass.)  477,  496;  Pierce  v.  State,  13 


§  274        THE  PROVINCE  OF  JUDGE  AND  JURY.  335 

Two  issues  thus  arise  and  both  must  be  tried.  An  acquittal  is 
equivalent  to  a  finding  that  either  the  existence  of  the  law  or 
the  existence  of  the  tacts  has  not  been  established,  while  a  ver- 
dict of  guilty  shows  that  both  the  law  and  the  facts  have  been 
found  to  be  against  the  accused.  In  other  words,  a  general 
verdict,  as  Chief  Justice  Shaw  well  points  out,  is  an  answer 
both  to  the  question,  "  Is  there  a  law  such  as  is  alleged  by  the 
state?"  and  to  the  question,  "Has  the  defendant  done  the 
acts  charged  and  violated  that  law?"  Bence,  it  is  very  evi- 
dent that  a  general  verdict  must  and  does  embody  and  declare 
the  result  of  an  inquiry  into  a  question  of  law  as  well  as  of 
fact.  But  no  way  of  analyzing  it  exists  to  ascertain,  as  it 
stands  upon  the  record,  whether  the  jury  determined  the  law 
as  well  as  the  weight  of  the  evidence.  Their  verdict  is  con- 
clusive and  unquestionable,  because  the  law  conclusively  pre- 
sumes that  they  acted  upon  correct  legal  rules.  But  the  fact 
that  the  question  of  fact  and  the  question  of  law  are  thus  inter- 
mingled in  the  verdict,  and  in  the  deliberations  of  the  jury 
which  led  up  to  it,  should  not  be  permitted  to  obscure  the  prin- 
ciple that  both  are  independent  and  distinct,  and  that  each  is 
to  be  determined  by  different  and  distinct  but  co-ordinate 
tribunals.  If  we  recognize  the  line  of  demarkation  between 
them  and  the  exclusive  province  of  judge  and  jury  we  must 
also  admit  that  the  minds  of  the  jurors  must  act  freely  and 
fully  within  the  scope  of  their  authority  and  duty,  and  the 
mind  of  the  judge  must  operate  with  equal  freedom  within  the 
range  of  his  right  and  authority.  The  law  will  presume  that 
both  judge  and  jury  have  done  their  duty,  and,  this  being  so, 
a  general  verdict  is  a  proper  answer  to  the  double  or  mixed 
question  of  law  and  fact,  "  Is  the  defendant  guilty  as  charged 
in  the  indictment?  "  Such  are  the  proper  considerations  when 
a  general  verdict  is  rendered.  But  the  jury  may  find  a  special 
verdict.  They  can  determine  the  material  facts  in  detail  upon 
the  evidence  as  submitted  to  them,  and  as  the  same  are  proved 
to  their  satisfaction,  and  the  judge  can  then  decide  whether,  in 
law,  the  facts  as  proved  bring  the  accused  within  the  penal 
statute  which  it  is  alleged  he  has  broken,  and  he  can  then  pro- 


336  CRIMINAL  EVIDENCE.  §  275 

nounce  him  guilty  or  the  reverse.  On  the  other  hand,  the 
court  can  inform  the  jury  what  the  law  is  as  applied  to  the 
case,  if  certain  facts,  stated  hypothetically,  are  proved  to  their 
satisfaction,  leaving  the  proof  entirely  to  them.  As  the  court 
can  not  tell  what  facts  the  jury  will  find,  it  can  only  of  neces- 
sity give  its  direction  in  a  hypothetical  form.  In  so  far  as  the 
jury  apply  the  rules  of  law  thus  stated  to  them  by  the  court 
they  may,  with  correctness,  be  said  to  pass  upon  the  law  by 
incorporating  it  in  their  verdict  and  placing  it  on  record  with 
their  determination  of  the  facts.  They  certainly  have  the 
physical  power  to  refuse  to  apply  the  rules  of  law  stated  to 
them,  and  if  their  refusal  results  in  an  acquittal  they  may,  to 
that  extent,  determine  what  the  law  is,  or  to  decide  that  the 
law,  as  stated,  is  not  applicable.  But  in  the  majority  of  in- 
stances in  which  a  general  verdict  is  returned  it  is  more  correct 
and  nearer  the  truth  to  say  that  the  jurors  merely  affirm  and 
declare  the  law  than  that  they  determine  what  it  shall  be.  It 
is  for  the  court  to  point  out  what  facts  are,  according  to  law, 
necessary  in  the  particular  case  to  be  proved  and  to  inform  the 
jury  that  the  law  characterizes  certain  facts,  taken  together,  as 
criminal  or  the  reverse.  It  is  for  the  jury  then,  keeping  these 
rules  of  law  in  mind,  to  find  a  verdict  of  guilty  or  not  guilty, 
according  as  they  find  these  facts  proved  or  the  reverse. 

§  275.  Charging  the  jury  on  the  law — Physical  power  of  the 
jury  to  disregard  the  judge's  charge. — The  judge  presiding  at 
a  criminal  trial  is  performing  one  of  his  most  delicate  and  im- 
portant duties  when  he  charges  the  jury  and  endeavors  to  in- 
struct them  in  the  rules  of  law  which  should  regulate  their 
deliberations.  The  impressiveness  and  dignity  of  the  judicial 
office,  the  venerable  and  upright  character  of  its  occupant,  and 
the  learning,  acumen  and  experience  which  he  is  assumed  to 
possess,  unite  to  impress  the  jury.  They  are  unconsciously 
influenced  to  accept  everything  that  comes  from  his  lips  as 
authoritative,  and  they  permit  his  opinions  upon  the  issues  of 
fact  involved,  so  far  as  he  may  announce  them,  to  guide  them 
in  their  deliberations.     The  frequency  with  which  convictions 


§  275 


TIIK    1'KOVINCK    OF    Jl'DdK    AND    JURY. 


337 


are  reversed  by  appellate  courts,  because  of  errors  in  judicial 
instructions,  clearly  demonstrates  the  truth  of  this  statement, 
and  illustrates  how  extremely  difficult  it  is  for  the  human  mind 
to  operate  impartially  in  the  presence  of  accusations  of  wicked 
conduct,  even  when  trained  to  the  task  by  years  of  study  ami 
experience. 

Under  the  qualifications  and  limitations  above  pointed  out 
it  is  the  duty  of  the  judge  to  instruct  the  jury  upon  all  ques- 
tions of  law  involved,  and  it  is  their  duty  to  be  governed  there- 
by.1 The  jury  are  sworn  to  determine  the  issue  according  to 
the  law  and  the  evidence,  and  the  language  of  the  court  is  the 
only  proper  evidence  of  what  the  law  is  that  is  in  their  posses- 
sion. In  the  absence  of  any  express  constitutional  or  statu- 
tory provision  making  them  the  judges  of  the  law  in  criminal 
cases,  they  are  bound  by  their  oaths  to  accept  the  judge's 
charge  as  proving  what  the  law  is,  and  to  act  accordingly.  It 
will  be  found,  as  a  rule,  that  juries  obey  and  follow  the  judi- 
cial instructions  implicitly.  It  is  evident,  however,  that  they 
have  the  physical  power,  though  not  the  legal  right,  to  disre- 
gard them.  But  the  exercise  of  the  power  does  not  involve  the 
possession  of  a  legal  right  to  disregard  the  judicial  instructions 
as  to  the  law,  and  the  distinction  between  the  two  is  clear  and 
vital.2     Hence,  if  the  jury  shall  disregard  the  law,  so  far  as  it 


1  Duffy  v.  People,  26  N.  Y.  588,  592; 
People  v.  Worden,  113  Cal.  569,  45  Pac. 
Rep.  844;  Sparf  v.  United  States,  156 
U.  S.  51,  61,  62,  77,  et  seq.  (a  leading 
case  and  well  reasoned.  Decided  in 
October,  1894) ;  Com.  v.  McManus, 
143  Pa.  St.  64,  84;  Com.  v.  Abbott,  13 
Mete. (Mass.)  120, 123,124;  Hannumc. 
State,  90  Tenn.  647;  United  States  v. 
Battiste,  2  Sumner,  240,  245 ;  People  v. 
Finnegan,  1  Park.  Cr.  Rep.  147,  152; 
Pierce  v.  State,  13  N.  H.  536,  543,  554 ; 
Hamilton  v.  People,  29  Mich.  173, 
192;  Montee  v.  Com.,  3  J.  J.  Marsh. 
(Ky.)  132,  149,  151;  State  v.  Smith, 
6  R.  I.  33,  34;  State  v.  Pierson,  12 
Ala.  149,  153 ;  Hardy  v.  State,  7  Mo. 
22— Cr.  Ev. 


607;  Com.  v.  Anthes,  5  Gray  (Mass.) 
185,  208,  218;  State  v.  Wright,  53  Me. 
328,  330-344;  People  v.  Pine,  2  Barb. 
(N.  Y.)  566,  568;  State  v.  Jeandel,  5 
Harr.  (Del.)  475;  Davenport  r.  Com., 
1  Leigh  (Va.)  588,  596;  Danforth  v. 
State,  75  Ga.  614;  McGowan  r.  State, 
9Yerg.  (Tenn.)  184,  193-195;  Pleas- 
ant v.  State,  13  Ark.  360,  376;  Adams 
v.  State,  29  Ohio  St.  412,  415;  Parrish 
v.  State,  14  Neb.  60,  63;  People 
Ivey,  49  Cal.  56,  57;  State  v.  Hanni- 
bal, 37  La.  An.  619,  620;  State  v.  Mil- 
ler, 53  Iowa  154,  156;  State  v.  Main 
(Conn.,  1897),  37  Atl.  Rep.  80. 
2  Parrish  v.  State,  14  Neb.  60,  63. 


338  CRIMINAL  EVIDENCE.  §  275 

is  stated  favorably  to  the  accused,  and  pronounce  him  guilty, 
the  verdict  may  be  set  aside  and  a  new  trial  ordered,  for  the 
same  reason  that  a  verdict  which  is  against  the  weight  of  the 
evidence  would  be  set  aside.  When,  however,  a  verdict  of  ac- 
quittal is  rendered  in  disregard  of  the  law  laid  down  by  the 
court,  the  decision  of  the  jury  is  final,  by  reason  of  the  exist- 
ence of  the  common-law  rule  that  no  man  can  twice  be  put  in 
jeopardy  for  the  same  offense.  Hence,  to  this  extent  the  jury 
may  be  said,  not  indeed  to  settle  the  law,  but  to  determine  that 
the  law  is  not  applicable,  or  to  refuse  to  apply  it.  So  far  they 
have  the  power  (and  perhaps  the  legal  right)  to  disregard  the 
instructions  of  the  court.1 

It  may  be  noted,  however,  that  not  every  proposition  which 
is  contained  in  a  text-writer  or  reported  case  is  the  law.2  It  is 
not  a  correct  method  of  instructing  the  jury  to  read  or  to  re- 
peat to  them  the  process  of  reasoning  or  the  arguments  of  legal 
authors,  or  of  judges  relating  to  matters  of  fact  or  experience 
which  do  not  contain  express  propositions  of  law,  but  are  mere 
enunciations  of  opinions  upon  matters  of  fact  or  suggestions 
drawn  from  every-day  experience.  These  have  an  appropriate 
place  in  the  argument  of  counsel,  but  their  weight  and  cogency 
in  determining  the  issue  of  guilt  are  for  the  minds  of  the  jury 
alone.3 

1  Com.  v.  McManus,  143  Pa.  St.  64,  *  In  Garfield  v.  State,  74  Ind.  60,  the 
84-97;  Habersham  v.  State,  56  Ga.  61,  court  says  on  page  64:  "The  teach- 
64-67;  Pierce  v.  State,  13  N.  H.  536;  ings  of  experience  on  questions  of  fact 
United  States  v.  Wilson,  1  Baldw.  C.C.  are  not,  however,  doctrines  of  law, 
78,108 ;  United  States  v.  Taylor,ll  Fed.  which  may  be  announced  as  such  from 
Eep.  470,  472, 3  McCrary  C.  C.  500, 505 ;  the  bench,  nor  yet  are  they  matters  of 
Duffy  v.  People,  26  N.  Y.  588 ;  People  proof  to  be  shown  as  otber  facts  in  the 
v.  Pine,  2  Barb.  (N.  Y.)  566,  568.  case.  They  may  well  enter  into  the 
"They  are,  ex  necessitate,  ultimate  arguments  of  attorneys,  one  side 
judges,  in  one  respect,  of  the  law ;  for  claiming  that  experience  teaches  one 
if  they  acquit,  the  judge  can  not  grant  thing  and  the  other  side  asserting  an- 
a  new  trial,  how  much  soever  they  other  conclusion;  but  the  jury,  not  the 
have  misconceived  or  disregarded  the  judge,  is  the  arbiter  of  such  conten- 
law."  Montee  v.  Com.,  3  J.  J.  Marsh,  tions,  as  of  all  questions  of  fact.  The 
(Ky.)  132,  149,  151 ;  Com.  v.  VanTuyl,  most  that  the  judge  may  do  is  to  direct 
1  Mete.  (Ky.)  1,  5.  the  attention  of  the  jurors  to   such 

2  People  v.  Wayman,  128  N.  Y.  585,  propositions  and  leave  them,  in  the 
587.  light  of  their  experience,  to  say  what 


§  276        THE  PROVINCE  OF  JUDGE  AND  JURY.  339 

§  270.  Charging  on  the  evidence. — The  judge  may,  and  in- 
deed should,  charge  the  jury  on  the  evidence.  It  is  his  duty 
to  marshal  all  the  evidence  before  the  jury  in  such  a  way  and 
with  such  comments  as  will  enable  them  to  see  its  relevancy 
and  pertinency.  He  may  state  it,  and  a  careful,  logical  and 
impartial  repetition,  or  an  intelligent  analysis,  of  it  will  in- 
variably facilitate  their  labors  in  determining  its  credibility, 
appreciating  its  character  and  weight,  and  thus  ascertaining  the 
truth.  These  are  for  their  consideration  alone,  but  the  court 
should  aid  them  so  that  they  may  come  to  an  intelligent  and 
satisfactory  conclusion,  which  shall  be  in  accordance  with  the 
law  and  consistent  with  the  proof.  This  must  be  done  fairly 
and  impartially,  with  a  due  regard  to  the  preservation  of  the 
defendant's  rights.  Nor  need  the  court  refrain  from  a  fair, 
just  and  accurate  summary  of  the  evidence,  because  when  thus 
presented  it  may  be  unfavorable  to  the  accused.1  On  the  other 
hand  the  court  must  not  select  and  give  undue  prominence  to 
certain  parts  of  the  testimony  to  the  exclusion  of  others  of 
equal  importance,  but  which  do  not  seem  as  important  to  the 
judicial  mind.2 

The  usual,  and  at  the  same  time  the  safest,  formula  is,  "if, 
from  the  evidence,  the  jury  believe,  etc.,  then  it  is  their  duty 
to  convict."  The  court  may  proceed  to  lay  down  certain  well 
recognized  legal  rules  which  should  be  their  guide  in  weighing 
the  evidence  and  in  determining  its  weight,  for  the  power  of  the 
jury  to  determine  the  weight  and  credibility  of  the  evidence  is 
not  arbitrary.  It  must  be  exercised  in  subordination  to  the 
logical  principles  which  underlie  all  evidence,  and  which,  from 
long  reiteration  and  experience,  have  acquired  the  effect  and 
character  of  rules  of  law.     Thus  the  jury  may  with   propriety 

credit  should  be  given  to  any  testi-  People,  141  111.  195,  30  N.  E.  Rep.  329, 

mony  on  account  of  its  alleged  doubt-  209;  People  v.  Hawes,  98  Cal.  648,  (153  ; 

ful  character."  Bell  v.  State,  91  Ga.  15,  17;    Grant   o. 

1  State  v.  Rose,  47  Minn.  47,  52 ;  Peo-  State,  97  Ala.  35,  37 ;  Miller  v.  State, 

pie  v.   Fanning,   131  N.  Y.  659,  663.  107  Ala.  40,  19  So.  Rep.  37;    Prine  p. 

2Golev  v.  State,  85  Ala.  333,  336;  State,  73  Miss.  838,19  So. Rep.  711 ;  Peo- 

State  v.  Ward,  19  Nev.  297 ;  Morgan  v.  pie  v.  Caldwell  (Mich.,  1896),  65  N.W. 

State,  48  Ohio  St.  371,377;  Scott  v.  Rep.  213. 


340  CRIMINAL  EVIDENCE.  §  277 

be  told  that  the  testimony  of  an  accomplice  uncorroborated 
is  to  be  viewed  with  distrust ;  that  the  admission  of  the  pris- 
oner is  to  be  carefully  scrutinized ;  that  a  witness  shown  to 
have  testified  falsely  in  any  material  particular  should  be  dis- 
believed, and  that  they  may  consider  the  interest  of  the  ac- 
cused when  he  testifies  as  a  witness.  So  they  may  be  instructed 
generally  upon  the  rules  of  law  which  determine  the  relevancy 
and  probative  force  of  presumptions  of  law  which  are  received 
in  lieu  of  proof,  and  of  evidence  such  as  dying  declarations 
and  confessions,  which  constitute  exceptions  to  general  rules, 
and  are  received  ex  necessitate  rei.  But  the  court  can  not  ex- 
ceed these  limits  and  point  out  the  particular  and  common  de- 
tails which  are  within  the  knowledge  and  experience  of  men 
generally,  and  are  to  be  regarded  in  determining  whether  any 
evidence  is  or  is  not  to  be  believed.  Thus,  for  example,  the 
court  should  not  discredit  a  witness  by  stating  that  he  has  been 
impeached  on  his  cross-examination  because  of  his  ignorance 
and  want  of  experience.1 

The  weight  to  be  given  to  the  evidence  and  the  credibility  of 
the  witnesses  in  every  case  where,  upon  the  whole  testimony, 
an  issue  of  fact  arises,  are  for  the  exclusive  consideration  and 
determination  of  the  jury.2 

§  277.  Assumption  of  facts  in  charge. — The  duty  and  the 
right  of  the  court  to  state  the  testimony  does  not,  by  implica- 
tion, authorize  it  to  declare  what  is  proved  by  the  testimony, 
or  what  is  the  result  of  the  testimony.  These  are  questions 
for  the  jury.3     The  credibility  of  any  evidence  which  has  been 

Thomas  v.  State,  95  Ga.   484,   22  130  Ind.  237,240;   Eawls  v.  State,  97 

S.  E.  Rep.  315.  Of.,  also,  Hauk  v.  State  Ga.  186,  22  S.  E.  Rep.  529;   Ware  v. 

(Ind.,  1897),  46  N.  E.  Rep.  127.  State,  96  Ga.  349,  23  S.  E.  Rep.  410; 

2  State  v.  Jones,  44  La    An.    1120,  Williams  v.  State,  46  Neb.  704,  65  N. 

1121 ;  State  v.  Plum,  49  Kan.  679,  683 ;  W.  Rep.  783 ;  People  v.  Brow,  90  Hun 

Baysinger  v.  State,   115  111.  419,427;  509,  35  N.  Y.  Supp.  1009;    Bonner  v. 

States.  Jones,  86  Mo.  623,  628;   State  State   (Ala.,   1896),  18  So.  Rep    226; 

Wisdom,  84  Mo.  177,  190;    Jones   v.  State  v.  Aughtry   (S.  Car.,  1897),  26 

State,  59  Ark.  417,  419;   State  v.  Kib-  S.  E.  Rep.  619;   State  v.  Cannon  (S. 

ling,  63  Vt.  636,  645;   People  v.  Min-  Car.,  1897),  27  S.  E.  Rep.  526. 
naugh,  131  N.  Y.  563,  565;   People  v.        3  People  v.  Flynn,  73  Cal.  511,  516; 

Cowgill,  93  Cal.  596;   Dean  v.  State,  People  v.  Casey,  65  Cal.  260. 


§278 


THE  PROVINCK  OF  JUDGE  AND  JURY. 


341 


offered  is  for  the  jury  alone.  Hence,  the  court  should  not,  in 
its  charge,  assume,  as  proved,  any  allegation  unsupported  by 
evidence,  or  on  which  the  evidence  is  so  contradictory  that 
reasonable  men  may  form  opposite  opinions.1  Whether  a 
fact,  upon  which  the  evidence  is  conflicting,  is  proved,  is  for 
the  jury  to  determine.  But  where  a  fact  is  conceded  or  is 
established  clearly  and  satisfactorily  by  the  evidence  without 
conflict  or  contradiction,  the  court  may  assume  it  as  proved, 
or  instruct  the  jury  that  there  is  evidence  tending  to  prove 
that  fact.2 

§  278.    Necessity  for  evidence  to  sustain  instruction. — It  is 

not  proper  for  the  court  to  give  instructions  which,  though 
they  embody  a  correct  statement  of  the  law  zi  evidence,  are 
merely  legal  abstractions,  because  they  are  not  sustained  by 
any  evidence  in  the  case.3  Thus,  it  is  not  error  lor  the  court 
to  refuse  to  charge  upon  evidence,  which  was  excluded,4  and  a 
fortiori,  on  evidence,  which  has  not  been  offered,  and  which 
is  absolutely  irrelevant,5  because  the  issue  upon  which  it  would 
alone  be  relevant  does  not  exist  in  the  case. 


Newton  v.  State  (Miss.,  1893),  12 
So.  Rep.  560;  State  v.  Hope,  102  Mo. 
410;  Horn  v.  State,  98  Ala.  23,  13  So. 
Rep.  329;  Brown  v.  State,  72  Miss. 
997,  17  So.  Rep.  278;  Com.  v.  Mc- 
Mahon,  145  Pa.  St.  413,418;  People 
v.  Lang,  104  Cal.  363,  368;  Scott  v. 
People,  141  111.  195,  212,  30  N.  E.  Rep. 
329;  State  v.  Lewis,  56  Kan.  374;  43 
Pac.  Rep.  265;  Fowler  v.  State,  100 
Ala.  96,  14  So.  Rep.  860. 

zKoerner  v.  State,  98  Ind.  7,  13; 
Spigner  v.  State,  103  Ala.  30,  15  So. 
Rep.  892;  Hawkins  v.  State,  136  Ind. 
630,634,36  N.  E.  Rep.  419;  Morgan 
v.  State,  48  Ohio  St.  371,  375;  State  v. 
Meshek,  61  Iowa  316,  319;  State  v. 
Aughtry  (S.  Car.,  1897),  26  S.  E.  Rep. 
619;  Wiborg  r.  United  States,  163 
U.S.  632,  16  S.  Ct.  1127;  Jeffries  v. 
State,  61  Ark.  308.32S.W.  Rep.  10S0; 


State  v.  Zinn,  61  Mo.  App.  476,  1  Mo. 
App.  Rep.  661 ;  Holliday  v.  State 
(Tex.,  1896),  32  S.  W.  Rep.  538;  Peo- 
ple v.  Sternberg,  111  Cal.  3,  43  Pac. 
Rep.  198. 

3  State  v.  Robinson,  35  S.  Car.  340, 
343,  14  S.  E.  Rep.  766;  Bostic  v.  State, 
94  Ala.  45,  10  So.  Rep.  602;  Hill  v. 
Com.,  88  Ya.  633,  640,  14  S.  E.  Rep. 
330;  Crane  v.  State,  111  Ala.  45,  20 
So.  Rep.  590;  Morearty  v.  State,  46 
Neb.  652;  Doyle  v.  State  (Fla.,  1897), 
22  So.  Rep.  272. 

4  Com.  v.  Cosseboom,  155  Mass.  298 ; 
29  N.  E.  Rep.  463. 

sFelker  v.  State,  54  Ark.  489,  495, 
498;  Morgan  v.  State,  48  Ohio  St.  371, 
377;  Massey  v.  State,  29  Tex.  App. 
159,  161  ;  Graff  v.  People,  134  111.  380, 
383;  Doyle  v.  People,  147  111.  394, 
398;  Jackson  v.  State,  91  Ga.  271,  273. 


342  CRIMINAL  EVIDENCE.  §  279 

§  279.  Directing  a  verdict. — In  a  civil  case  the  court  has 
the  legal  power  to  direct  a  verdict  for  plaintiff  when  his  cause 
of  action  is  admitted,  or  when  the  evidence  or  matter  of  de- 
fense, if  true,  constitutes  no  defense  in  law.1  So  if  the  plaintiff 
fails  to  substantiate  his  allegations  by  evidence  showing  at 
least  a  prima  facie  case,  there  is  nothing  to  go  to  the  jury, 
and  the  court  may  direct  a  nonsuit.  In  other  words,  where 
the  case  turns  upon  an  issue  of  law,  the  court  may,  in  a  civil 
case,  direct  the  jury  to  find  a  verdict  according  as  it  determines 
the  law,  for  the  reason  that  it  has  the  power  to  set  aside  a  ver- 
dict which  is  against  the  law.  But  the  court  can  not  in  a 
criminal  trial  set  aside  a  verdict  of  acquittal.  Hence,  to  per- 
mit it  to  direct  a  verdict  of  guilty  would  be  to  allow  it  to  do 
indirectly  that  which  it  has  no  power  to  do  directly. 

For  this  reason  the  jury  can  not  be  directed  to  render  a  ver- 
dict of  guilty,  no  matter  how  convincing  the  evidence  may  be, 
even  where  the  facts  are  admitted  or  settled  beyond  any  pos- 
sibility of  dispute.  The  constitutional  right-  of  the  accused  to 
have  his  guilt  or  innocence  determined  by  a  jury  of  his  peers 
can  not  be  denied  by  the  arbitrary  exercise  of  the  judicial 
power.2  In  a  criminal  trial  under  a  plea  of  not  guilty,  no  ad- 
mission of  a  cause  of  action  by  the  state  can  be  implied.  This 
plea  puts  in  issue  the  credibility  of  the  state's  evidence,  even 
if  it  is  otherwise  uncontradicted,  because  of  the  presumption  of 
innocence  which  compels  a  determination  by  the  jury.  If  no 
question  of  intent  is  involved  in  the  criminal  transaction,  and 
the  facts  are  overwhelmingly  proved  or  admitted,  so  that  the 
only  question  is,  has  a  statute  been  violated?  the  court  may 
properly  point  out  that  the  law  as  applied  to  the  facts  shows 
the  defendant's  guilt,  and  instruct  the  jury  that  it  is  their 
duty  to  convict.3 

1  United  States  v.  Taylor,  3  McCrary  Picker,  2  Mo.  App.  Rep.  1074 ;  People 
500,505.  v.  Collison,  85  Mich.  105,  109;  State 

2  United  States  v.  Taylor,  11  Fed.  v.  Winchester,  113  N.  Car.  641,  642, 
Rep.  470,  472,  3  McCrary  500;  United  18  S.  W.  Rep.  657;  State  v.  Riley,  113 
States  v.  Battiste,  2  Sumner  240,  243;  N.  Car.  648,  649-651;  State  v.  Picker, 
Sims  v.  State,  43  Ala.  33,  37;  Com.  v.  2  Mo.  App.  1074. 

Werntz,  161  Pa.  St.  591,599;  Tucker        3  People  v.  Neumann,    85  Mich.  98, 
v.   State,  57   Ga.   503,   505;    State  v.     101 ;  People  v.  Elmer(Mich.,1896),67N. 


§  280 


THE  PROVINCE  OF  JUDGE  AND  JURY. 


343 


The  court  can  not,  during  the  progress  of  the  trial,  instruct 
the  clerk  to  enter  a  verdict  of  not  guilty  and  then  discharge 
a  prisoner.  If  there  is  no  evidence  tending  to  prove  the  of- 
fense charged,  and  the  only  issue  is  one  of  law,  it  is  the  duty 
of  the  court  to  direct  an  acquittal,  and  erroneous  not  to  do  so.1 
And  it  has  heen  held  that  even  when  the  evidence  is  insuf- 
ficient in  the  opinion  of  the  court  to  support  a  conviction  on  a 
motion  for  a  new  trial,  it  becomes  its  duty,  with  or  without2 
a  request,  to  direct  an  acquittal.  A  request  to  have  the  jury 
directed  to  acquit  must  state  specifically  the  grounds  on  which 
it  is  based.3 

§  280.  Order  and  manner  of  introducing  the  proof. — Ordi- 
narily in  all  judicial  proceedings  the  party  who  has  the  burden 
of  proof  must,  in  the  opening,  introduce  all  the  facts  in  evi- 
dence which  constitutes  his  case.  He  is  required  then  to 
make  out  a  prima  facie  case  only,  and  need  not  anticipate  his 
adversary's  case  or  attempt  to  meet  his  evidence  until  the  proof 
of  the  latter  is  heard.    In  the  case  of  homicide  and  other  serious 


W.  Rep.  550.  But  where  intent  is  in 
question,  an  instruction  that  if  the 
jury  believe  the  evidence  it  is  their 
duty  to  find  the  defendant  guilty,  is 
erroneous  as  withdrawing  the  ques- 
tion of  intent  from  them.  Perkins 
v.  State,  50  Ala.  154,  159.  "A  charge 
to  the  jury,  that  upon  the  facts 
testified  to,  assuming  them  to  be 
true,  it  would  be  their  duty  to  con- 
vict the  prisoner,  if  ever  proper, 
would  be  so  only  in  the  very  rare  cases 
in  which  the  force  of  the  facts  proved 
should  be  such  as  to  make  the  infer- 
ence of  criminal  intent  an  inference 
of  law  and  not  of  fact."  Duffy  v.  Peo- 
ple, 26  N.  Y.  588,  593. 

1  State  v.  Trove,  1  Ind.  App.  553, 
555;  Com.  v.  Lowrey,  158  Mass.  18, 
20;  Com.  v.  Ruddle,  142  Pa.  St.  144, 
149;  People  v.  Bennett,  49  N.  Y.  137, 
142,  148;  State  v.  Green,  117  N.  Car. 
695,  23  S.  E.  Rep.  98;  States.  Warner, 
74  Mo.  83,  85.     Cf.  People  v.  Daniels, 


105  Cal.  262,  266,  38  Pac.  Rep.  720, 
where  the  court  has  power  only  to 
"advise"  an  acquittal.  People  v. 
Roberts,  114  Cal.  67,  45  Pac.  Rep. 
1016.  "  In  cases  of  weak  and  unsatis- 
factory evidence,  the  court  can  always 
impress  a  jury  with  the  benign  princi- 
ples of  the  common  law  established 
for  the  protection  of  the  innocent; 
that  the  prosecution  is  bound  to  es- 
tablish a  clear  case;  that  the  prisoner 
is  entitled  to  all  reasonable  doubts, 
and  that  it  is  better  that  many  guilty 
prisoners  should  escape  than  that  one 
innocent  person  should  be  punished; 
ami  there  may  be  cases  so  weak  upon 
the  facts  as  to  justify  the  advice  that 
it  is  unsafe  to  convict."  People  v. 
Bennet,  49  N.  Y.  137,  143. 

2  Com.  v.  Merrill,  14  Gray  (Mass.) 
415,  418;  People  v.  Ledwon  (N.  Y.i 
1897),  46  N.  E.  Rep.  1046. 

3  State  v.  Nulty,  2  East.  Rep.  347. 


344  CRIMINAL  EVIDENCE.  §  280 

similar  criminal  offenses,  it  is  within  the  judicial  discretion  to 
require  the  state  to  prove  the  corpus  delicti  at  least  prima  facie, 
before  admitting  evidence  to  connect  the  accused  therewith.1 

After  the  prosecution  has  exhausted  its  case  and  the  accused 
has  had  a  full  opportunity  to  introduce  all  the  evidence  upon 
which  he  relies  for  an  acquittal,  the  court  may  permit  the  intro- 
duction of  rebutting  evidence  on  the  part  of  the  state.  By  rebut- 
ting evidence  is  meant  not  merely  evidence  which  contradicts  the 
witnesses  upon  collateral  and  irrelevant  points,  or  which  is 
corroborative  and  confirmative  of  that  which  preceded  it,  but 
evidence  which  squarely  meets  and  controverts  some  affirma- 
tive fact  or  facts  which  the  adversary  has  attempted  to  prove.2 

People  v.  Millard,  53  Mich.  63,  67;  v.  Pruett  (La.,  1897),  21  So.  Rep.  842; 

People  v.  Hall,  48  Mich.  482.     The  Brooke  v.  People  (Colo.,  1897),  48  Pac. 

order  in  which  the  prosecution  shall  Rep.  502. 

introduce  its  proof  is  usually  a  matter  2  State  v.  Parish,  22  Iowa  284;  Peo- 

of  judicial  discretion.     Davis  v.  State  pie  v.   Mayes,  113  Cal.  618,  45  Pac. 

(Neb.,  1897),  70  N.  W.  Rep.  984 ;  State  Rep.  860. 


CHAPTER  XXIII. 


EMBEZZLEMENT    AND     LARCENY. 


§281. 

Embezzlement— Essential  facts 

§296. 

Identifying    the  stolen   prop- 

constituting the  crime. 

erty. 

282. 

Embezzlement — The  intention 

297. 

Recorded  brands  of  cattle. 

to  convert. 

298. 

Evidence  of  venue  and  of  the 

283. 

Proving  other  acts  of  embez- 

value of  money  or  property. 

zlement. 

299. 

Inference   from    possession  of 

284. 

Evidence  of  demand  and  re- 

the property  stolen. 

fusal. 

300. 

Recent  and  exclusive  charac- 

285. 

The  existence  of  the  fiduciary 

ter  of  possession. 

relation. 

301. 

Burden  of  explaining  posses- 

286. 

The  ownership  of  the  property. 

sion — Character  of  explana- 

287. 

Evidence  of  efforts  to  conceal 

tory  evidence. 

or    dispose    of    property  or 

302. 

Explanatory  declarations. 

money. 

303. 

Evidence  of  footprints. 

288. 

Circumstantial     evidence     to 

304. 

Financial  standing  and  expen- 

prove the  venue. 

ditures  of  the  defendant. 

289. 

Value  of  the  property. 

305. 

Evidence  of  other  crimes. 

290. 

Admissions  by  the  defendant. 

306. 

Stolen   goods    found    through 

291. 

Documentary  evidence. 

inadmissible  confession. 

292. 

Larceny — The  felonious  inten- 

307. 

Malicious  mischief. 

tion. 

308. 

Malicious  intent. 

293. 

The  carrying  away. 

309. 

Ownership  and  value  of  prop- 

294. 

Ownership  —  Character    and 

erty — Evidence  that  the  ac- 

proof of. 

cused  acted  in  good  faith. 

295. 

Competency  of  owner  of  stolen 

310. 

Maliciously  injuring  animals. 

goods  as  witness — Proof  of 

311. 

Injuries  to  grain,  trees,  crops, 

his  non-consent. 

etc. 

§  281 .  Embezzlement  —  Essential  facts  constituting  the 
crime. — Four  distinct  propositions  of  fact  must  be  established 
beyond  a  reasonable  doubt  to  sustain  a  prosecution  for  embez- 
zlement by  an  agent  of  a  private  person  or  a  corporation. 
First,  that  the  accused  was  the  agent  of  the  person  or  corpora- 
tion, and  that  he,  by  the  terms  of  his  employment,  was  charged 

(345) 


346 


CRIMINAL    EVIDENCE. 


§  282 


with  receiving  the  money  or  property  of  his  principal.  Sec- 
ond, that  he  did,  in  fact,  receive  such  money.  Third,  that  he 
received  it  in  the  coarse  of  his  employment.  Fourth,  that  he, 
knowing  it  was  not  his  own,  converted  it  to  his  own  use  or  to 
the  use  of  some  third  person  not  the  true  owner.1 

§  282.  Embezzlement — The  intention  to  convert. — The  crime 
of  embezzlement  was  unknown  at  common  law.  It  is  wholly 
the  creature  of  statutory  enactment.2  It  consists  of  a  fraudu- 
lent appropriation  to  one's  own  use  of  the  goods  or  money  of 
another,  which  were  intrusted,  with  the  owner's  consent,  to 
one's  care  as  agent,  servant,  bailee,  trustee,  or  in  some  other 
fiduciary  capacity.  It  differs  from  larceny  in  that  larceny  in- 
volves an  unlawful  taking  without  the  owner's  consent,  while 
the  gist  of  embezzlement  is  the  conversion  or  breach  of  trust.8 

The  intent  to  defraud  the  true  owner  of  his  property  and  to 
convert  it  to  one's  own  use,  or  to  the  use  of  some  third  person, 
must  always  be  proved.4  The  intent  to  convert  may  always 
be  inferred  from  the  circumstances,5  if  they  are  sufficient  to 
prove  a  willful  and  unlawful  conversion.6 


1  Leonard  v.  State,  7  Tex.  App.  417. 
Ex  parte  Hedley,  31  Cal.  108;  Webb 
v.  State,  8  Tex.  App.  310,  311 ;  State 
v.  Schingen,  20  Wis.  74;  People  v. 
Cobler,  108  Cal.  538,  41  Pac.  Rep.  401. 

2  Leonard  v.  State,  7  Tex.  App.  417. 

3  Ennis  v.  State,  3  Green  (Iowa)  67; 
People  v.  Johnson,  91  Cal.  265,  272, 273 ; 
Com.  v.  Clifford,  96  Ky.  4,  27  S.  W. 
Rep.  811 ;  Com.  v.  Moore,  166  Mass. 
513,  44  N.  E.  Rep.  612.  The  his- 
tory of  the  distinction  at  common  law 
between  the  crimes  of  larceny  and 
embezzlement  and  of  the  English 
legislation  upon  the  subject  is  dis- 
cussed at  considerable  length  in  Com. 
v.  Ryan,  155  Mass.  523,  527-529. 

4  People  v.  Hurst,  62  Mich.  276, 
277;  State  v.  Carkin  (Me.,  1897), 
37  Atl.  Rep.  878;  People  v.  Gal- 
land,  55  Mich.  628,  629;  Stallings 
v.   State,   29   Tex.    App.    220,    15    S. 


W.  Rep.  716;  State  v.  Reilly,  4  Mo. 
App.  392,  396-400;  State  v.  Lyon,  45 
N.  J.  L.  272,  275;  State  v.  Adams,  108 
Mo.  208,  18  S.  W.  Rep.  1000 ;  State  v. 
Kortgaard,  64  Minn.  7,  64  N.  W.  Rep. 
51;  Mulford  v.  People,  139  111.  586; 
State  v.  Pratt,  98  Mo.  482,  485 ;  State 
v.  Trolson,  21  Nev.  419,  427;  State  v. 
Hopkins,  56  Vt.  250 ;  Robson  v.  State, 
83  Ga.  166,  9  S.  E.  Rep.  610,  612 ;  Beaty 
v.  State,  82  Ind.  228,  232;  People  v. 
Page,  116  Cal.  386,  48  Pac.  Rep.  326. 

5  State  v.  Kortgaard,  62  Minn.  7,  64 
N.  W.  Rep.  51,  55;  People  v.  Wads- 
worth,  63  Mich.  500. 

6  State  v.  Brame,  61  Minn.  101 ,  63  N. 
W.  Rep.  250 ;  State  v.  Noland,  111  Mo. 
473,  485,  19  S.  W.  Rep.  715,  722;  Com. 
v.  Moore,  166  Mass.  513, 44  N.  E.  Rep. 
612.  In  such  a  case  the  consent  or 
permission  of  the  owner  to  the  taking 
is  irrelevant.  United  States  v.  Taintor, 


§  283 


EMBEZZLEMENT    AND    LARCENY. 


347 


§  283.  Proving  other  acts  of  embezzlement. — Other  similar 
acts  of  embezzlement  at  about  the  same  time  are  relevant  to 
show  the  criminal  intent.1 


§  284.  Evidence  of  demand  and  refusal. — Whether  proof  of 
a  demand  is  necessary  to  show  the  conversion  depends  wholly 
upon  the  language  of  the  statute.  Even  if  not  absolutely 
essential,  it  may  be  relevant  and  proper  to  prove  a  demand, 
and  that  compliance  was  refused  to  show  the  intention  to  con- 
vert.2 Proof  of  a  demand  is  certainly  immaterial  where  the 
demand  would  be  ineffectual,  as  when  the  accused  admits  he 
has  sold  the  goods.3 

§  285.  The  existence  of  the  fiduciary  relation. — There  can 
be  no  embezzlement  where  the  relation  between  the  parties  is 
that  of  debtor  and  creditor.4  The  evidence  must  show  that  a 
relation  of  trust  existed  between  the  defendant  and  the  true 
owner  of  the  money  or  property,  and  that  the  thing  embezzled 
came  into  the  defendant's  possession  by  virtue  of  his  employ- 


11  Blatch.  C.  C.  374;  Faust  v.  United 
States,  163  U.  S.  452,  16  S.  Ct.  1112. 

1  People  v.  Neyce,  86  Cal.  393,  395 
People  v.  Bidleman,  104  Cal.  608,  613 
People  v.  Connelly,  38  Pac.  Rep.  42 
People  v.  Van  Ewan,  111  Cal.  144,  43 
Pac.  Rep.  520;  State  v.  Kortgaard,  62 
Minn.  7,  64  N.  W.  Rep.  51 ;  Bulloch  v. 
State,  10  Ga.  47,  54;  Com.  v.  Tucker- 
man,  10  Gray  173,  200;  Com.  v.  Shep- 
ard,  1  Allen  575,  581;  Com.  v.  East- 
man, 1  Cush.  (Mass.)  189,  216;  Brown 
v.  State,  18  Ohio  St.  496;  People  v. 
Hawkins  (Mich.,  1896),  64  N.  W. 
Rep.  736;  Jackson  v.  State,  76  Ga. 
551,  568;  Stanley  v.  State,  88  Ala.  154, 
157;  Lang  v.  State,  97  Ala.  41,  46; 
Ingram  v.  State,  39  Ala.  247;  People 
v.  Gray,  66  Cal.  271  ;  Reg.  v.  Richard- 
son, 8  Cox  C.  C.  448,  2  F.  &  F.  343. 
But  the  court  must,  on  request,  in- 
struct the  jury  that  this  evidence  must 
be  confined  to    this   point.     State  v. 


Holmes  (Mich.,  1896),68N.W. Rep.  11. 

2  State  v.  Bryan,  40  Iowa  379;  Peo- 
ple v.  Royce,  106  Cal.  173, 39  Pac.  Rep. 
524,  525;  Burnett  v.  State  (N.  J., 
1897),  37  Atl.  Rep.  622.  The  felonious 
conversion  of  the  property,  when 
complete,  constitutes  the  gist  of  the 
crime,  and  if  this  is  otherwise  proved 
a  demand  is  superfluous.  Wallis  v. 
State,  54  Ark.  611,  620.  Cf.  State  c. 
Brown,  85  Iowa  366,  371. 

3  United  States  v.  Adams,  2  Dak. 
305;  State  v.  Foley,  81  Iowa  36,  37,  46 
N.  W.  Rep.  746;  Dean  v.  State  (Ind., 
L897),46  N.  E.  Rep.  528.  Evidence 
of  demand  may  be  admissible  and 
proper  to  show  a  failure  to  pay  over 
or  account  for  money.  State  ?•.  Sarlls, 
135  Ind.  195,  1!)!);  State  '.  Adamson, 
114  Ind.  216,  219;  Hale  i».  Richards, 
80  Iowa  164.  See,  also,  People  v.  Page, 
116  Cal.  386,  48  Pac.  Rep.  326. 

*  Mulford  v.  People,  139  111.  586. 


348  CRIMINAL  EVIDENCE.  §  286 

merit  as  an  agent  or  bailee.1  It  is  sufficient  to  prove  the  offi- 
cial character  of  an  officer  of  a  corporation  de  facto.  It  is  not 
necessary  to  produce  a  written  certificate  of  his  appointment, 
or  to  show  that  he  was  sworn  or  had  given  an  official  bond.2 
But  the  crime  is  not  proved  merely  by  showing  the  agency  and 
the  conversion.  To  show  the  intent,  it  must  appear  beyond  a 
reasonable  doubt  that  the  agent  had  no  right  to  use  the  money 
or  goods  in  the  manner  he  did.  It  must  be  shown  to  be  a  con- 
version which  the  agent,  under  his  contract,  had  no  right  to 
make.3  Ordinarily,  the  contract  of  employment,  when  in  writ- 
ing, ought  to  be  produced.  But  it  seems  the  principal  may 
testify  orally  to  the  fact  of  agency,  and  he  is  then  open  to 
cross-examination  as  to  the  facts  upon  which  this  conclusion  is 
based.4 

§  286.  The  ownership  of  the  property. — The  ownership  of 
the  goods  must  be  proved  to  be  in  some  other  person  than  the 
accused.  When  it  is  laid  in  a  corporation,  proof  of  a  corpora- 
tion de  facto  is  enough.5  The  charter  or  certificate  of  incorpo- 
ration need  not  be  produced.6 

§  287.  Evidence  of  efforts  to  conceal  or  dispose  of  property 
or  money. — It  is  always  relevant,  and,  indeed,  indispensable 
to  prove  some  kind  or  degree  of  concealment  by  the  accused, 

1  Bartow  v.  People,  78  N.  Y.  377,    541 ;  People  v.  Page,  116  Cal.  386,  48 
381 ;  McAleer  v.  State,  46  Neb.  116,     Pac.  Rep.  326. 

64  N.  W.  Rep.  358;  State  v.  Mahan  4  State  v.  Brooks,  85  Iowa  366,  372. 

(Mo.,  1897),  39  S.  W.  Rep.  465;  State  But  compare,  contra,  People  v.  Bidle- 

v.  Cooper  (Iowa,  1897),  71  N.  W.  Rep.  man,  104  Cal.  608,  613;  Thalheim  v. 

187.     Evidence  of  usage  and  custom  is  State  (Fla.,  1897),  20  So.  Rep.  938. 

admissible  to  show  that  the  money  5Fleenerv.  State,  58  Ark.  98,  102; 

came  into  the  custody  of  defendant  by  Burke  v.  State,  34  Ohio  St.  79 ;  Calkins 

virtue  of  his  employment.     State  v.  v.  State,  18  Ohio  St.  366,  98  Am.  Dec. 

Silva,  130  Mo.  440,32  S.W.  Rep.  1007.  121 ;  State  v.  Turner,  119  N.  Car.  841, 

2  State  v.  Findley,  101  Mo.  217,  14  25  S.  E.  Rep.  810. 

S.W.  Rep.  185,  186;  State  v.  Stone,  6  An  immaterial  variance  in  proving 

40  Iowa  457 ;  Dierberger  v.  State,  90  the  name  of  the  owner  may  be  disre- 

Mo.  369,  371.    Cf.  People  v.  Page,  116  garded.    Jackson  v.  State,  76  Ga.  551, 

Cal.  386,  48  Pac.  Rep.  326.  567;  Com.  v.  Dedham,  16  Mass.  141, 

3  State  v.  Wallick,  87  Iowa  369,  373 ;  147.     Contra,  Washington  v.  State,  72 
State  v.  Hill,  47  Neb.  456, 66  N.  W.  Rep.  Ala.  272,  276. 


§288  EMBEZZLEMENT    AND    LARCENY.  349 

either  of  the  property  or  of  the  facts  regarding  its  disposal.1 
Fraudulent  vouchers  and  false  Statements, '  and  false  entri-  - 
in  books  containing  a  record  of  the  transaction  in  question  are 
always  relevant.  It  need  not  be  shown  that  the  false  entries 
were  made  at  the  time  of  the  embezzlement,  or  that  they  wire 
made  by  the  accused,  if  it  appears  that  they  were  made  at  Ins 
instance  and  with  his  knowledge.8 

§  288.  Circumstantial  evidence  to  prove  the  venue. — Circum- 
stantial evidence  is  usually  all  that  can  be  obtained  to  prove  the 
venue  because  of  the  customary  secrecy  of  the  act  of  conver- 
sion. If  it  appears  that  the  accused  received  the  property  in 
the  county  alleged,  and  that,  when  it  was  last  seen  in  his  cus- 
tody, he  was  in  that  county,  the  venue  is  proved.*  This  prima 
facie  proof  of  venue  may  be  rebutted  by  showing  that  the 
money  was  taken  to  another  county  and  fraudulently  converted 
there.5 

§  289.  Value  of  the  property. — The  value  of  the  property 
involved  need  not  be  shown  unless  to  ascertain  whether  the 
crime  is  a  felony  or  misdemeanor.6  If  the  value  of  several 
articles  is  alleged  in  a  lump  sum,  the  value  of  each  may  be 
shown  separately.7  The  crime  of  embezzlement  is  peculiar  in 
some  respects.  It  is  usually  impossible  to  prove  it  with  much 
preciseness  of  detail,  particularly  in  the  case  of   superior  exec- 

1  Fleener  v.  State,  58  Ark.  98,  104;  "Proof  of  demand,  and  neglect  to  re- 
Calkins  v.  State,  18  Ohio  St.  366,  98  turn,  is  evidence  of  conversion;  but 
Am.  Dec.  132-134;  State  v.  Pierce,  77  mere  neglect  to  return  or  to  pay 
Iowa  245,  249;  State  v.  Tompkins,  32  money  over  is  not  proof  of  a  fraud- 
La.  An.  620;  State  v.  Fain,  106  N.  Car.  ulent  conversion."  Fitzgerald  v.  State, 
760,  764;  Stallings  v.  State,  29  Tex.  50  N.  J.  L.  475,  477,  14  Atl.  Rep.  7 a.. 
App.  220,  15  S.  W.  Rep.  716,  717.  But  747;  People  v.  Wyman,  102  Cal.  552, 
facts  showing  a  conversion  are  enough.  36  Pac.  Rep.  932,  934. 

It  need  not  be  shown  how  defendant  4  Wallia  v.  State,  54  Ark.  611,  620,  16 

finally  disposed  of  the  money.     State  S.  W.  Rep.  821:  Robson  v.  Btate,  BS 

v.  King,  81  Iowa  587;  State  v.  Pierce,  Ga.  166,  9  S.  E.  Rep.  610,  611 ;  State  v. 

77  Iowa  245.  Small,  26  Kan.  209. 

2  State  v.  Cowan,   74  Iowa  53,  55;  5 State  v.  Now,  22  Minn.  76,  79. 
Com.  v.  Moore,  166  Mass.  513,  44  N.  E.  6  Gerard  r.  State,  10  Tex.  App.  690, 
Rep.  612.  692. 

3  Jackson  v.  State,  76  Ga.  551,  568.  7  State  v.  Mook,  40  Ohio  St.  588,  590. 


350  CRIMINAL  EVIDENCE.  §  290 

utive,  public  or  private  officials,  who  have  no  one  to  watch 
their  manner  of  doing  business.  The  statute  against  embez- 
zlement would  be  a  dead  letter  if  it  were  required  in  every  case 
to  show  precisely  when  the  accused  received  the  funds  or  to 
prove  their  character,  whether  drafts,  bank-notes  or  coin.  Em- 
bezzlement usually  consists  of  a  continuous  series  of  acts  of 
conversion,  done  at  various  times  but  with  a  common  design, 
and  resulting  in  the  principal  and  important  fact  of  a  short- 
age. Proof  of  such  a  series  of  criminal  acts  is  sufficient  to 
sustain  a  verdict  that  the  aggregate  amount,  as  alleged,  was 
embezzled.1 

§  290.  Admissions  by  the  defendant. — A  confession  to  be 
admissible  must  relate  specifically  to  the  matter  charged  in  the 
indictment.  A  confession,  in  general  terms,  that  accused  had 
been  taking  money  "  all  along,  since  he  had  worked  for  his 
employer,  but  he  could  not  say  how  much,"  should  be  re- 
jected, as  it  does  not  refer  to  names,  dates,  amounts  or  any 
other  specific  details.2  Admission  by  the  accused,  of  relevant 
facts,  are  always  competent.3  A  draft  paid  to  the  defendant,* 
or  a  receipt  signed  by  him  in  his  official  capacity,  is  admissi- 
ble against  him.5  But  statements  of  accounts  and  letters  pass- 
ing between  the  principal  and  the  agent  are  not  generally  re- 
ceived as  independent  evidence,  unless  they  can  be  construed 
as  constituting  a  part  of  the  res  gestse.6 

§  291.  Documentary  evidence. — The  admissibility  and  effect 
of  transcripts  of  public  records  are  frequently  under  considera- 
tion in  the  trial  of  public  officials  for  embezzling  public  prop- 

1  Jackson  v.  State,  76  Ga.  551,  573 ;  4  State  v.  Brooks,  85  Iowa  366,  371. 
State  v.  Pratt,  98  Mo.  482,  489;   State  "People  v.  Van  Ewan,  111  Cal.  144, 
v.   Ring,  29   Minn.  78,  84;    Bolln  v.  43  Pac.  Rep.  520;  Denton  v.  State,  77 
State  (Neb.,  1897),  71  N.  W.  Rep.  444.  Md.  527,  529. 

2  Com  v.  Sawtelle,  141  Mass.  140,  6  State  v.  Adams,  108  Mo.  208, 18  S. 
144.  W.  Rep.  1000.    The  fact  that  the  de- 

3  Butler  v.  State,  91  Ala.  87,  9  So.  fendant  does  not  reply  to  a  letter  re- 
Rep.  191 ;  State  v.  Mims,  26  Minn,  questing  a  settlement  is  evidence, 
183;  Smith  v.  State  (Tex.,  1895),  30  with  the  letter.  State  v.  Adams,  108 
S.  W.  Rep.  236,  237.  Mo.  208,  213,  214. 


§  2'J1 


EMBEZZLEMENT    AND    LARCENY 


351 


erty  or  funds.  The  general  rule  is  that  public  records  are 
admissible  as  evidence  of  all  facts  which  are  contained  therein, 
and  which  were  required  by  statute  to  be  recorded  by  the  oflicial 
who  made  the  entry.  So  the  failure  of  a  public  officer  to  pay 
over  money  which  he  has  collected  may  be  shown  by  a  tran- 
script of  an  official  register  in  which  the  payment  should  have 
been  entered.1  Such  records  are  not,  however,  conclusive 
against  the  defendant.  He  may  endeavor  to  explain  or  to  im- 
peach them  unless  he  had  already  examined  them  and  appeared 
satisfied  with  the  entries.  Under  these  circumstances  he  may 
be  regarded  as  estopped  by  them.2  Entries  made  by  the  ac- 
cused himself  in  his  own  hand  in  books  kept  by  him  are  re- 
ceived against  him  as  admissions  to  show  the  receipt  of  the 
money  and  a  failure  to  pay  over.3  But  entries  in  his  books  by 
others  are  not  admissible  unless  there  is  preliminary  proof 
that  his  attention  was  called  to  them.4  An  expert  accountant 
may  testify  orally  to  the  result  of  his  examination  of  volumin- 
ous books  and  accounts  containing  the  amount  of  money  re- 
ceived and  paid  by  the  accused  when  it  is  not  convenient  to 
bring  the  books  into  court.5 


1  Shivers  v.  State,  53  Ga.  149,  152; 
State  v.  King,  81  Iowa  587. 

2  People  v.  Flock,  100  Mich.  512, 
514,  59  N.  W.  Rep.  237;  Bork  v.  Peo- 
ple, 16  Hun  (N.  Y.)  476;  Hocken- 
berger  v.  State  (Neb.,  1897),  68  N.  W. 
Eep.  1037.  A  check  drawn  by  an 
official  is  admissible  against  him  to 
show  the  manner  in  which  he  em- 
bezzled public  funds,  though  it  may 
not  be  formally  correct,  or  a  sufficient 
voucher  as  between  the  government 
and  the  bank  upon  which  it  is  drawn. 
State  v.  Noland,  111  Mo.  473, 19  S.  W. 
Rep.  715. 

3  State  v.  Ring,  29  Minn.  78,  83; 
Com.  v.  Pratt,  137  Mass.  98,  105; 
Hockenberger  v.    State,   supra. 

4  Lang  v.  State,  97  Ala.  41,  46. 

5  Hollingsworth  v.  State,  111  Ind. 
289,  297;  State  v.  Findley,  101  Mo. 
217,  14  S.  W.  Rep.  185,  187.     Where 


the  defendant  was  accused  of  em- 
bezzling the  money  of  a  bank  of 
which  he  was  cashier,  and  the  point 
at  issue  was  whether  he  had  conspired 
with  others  to  get  the  money  of  the 
bank  into  his  possession  that  he 
might  convert  it  to  his  own  use,  evi- 
dence is  relevant  to  show  that  the 
bank  became  insolvent,  its  financial 
condition  at  that  date,  its  stock  and 
liabilities,  that  defendant  and  his 
brother  were  insolvent  and  owed  the 
bank  large  sums,  that  defendant  had 
drawn  large  sums  on  his  own  account, 
and  that  a  person  whose  draft  had 
been  discounted  for  the  defendant 
was  also  insolvent.  Reeves  v.  State, 
95  Ala.  31,  11  So.  Rep.  158.  Evidence 
to  show  that  the  bondsmen  of  the  ac- 
cused had  settled  and  paid  the  short- 
age is  irrelevant.  Fleener  v.  State,  58 
Ark.  98.  105;   Morehouse  v.  State,  35 


352 


CRIMINAL    EVIDENCE. 


292 


§  292.  Larceny — The  felonious  intention. — The  felonious 
and  larcenous  intention  which  was  present  in  taking  the 
goods  must  be  shown  beyond  a  reasonable  doubt.1  It  may,  of 
course,  be  inferred  from  circumstances  indicating  motive. 
The  intent  is  for  the  jury,  and  if  it  can  fairly  be  inferred  on 
all  the  evidence  a  conviction  must  be  affirmed2.  Evidence  of 
a  secret  or  wrongful  taking  of  the  goods  without  the  owner's 
consent,  and  of  an  attempt  to  conceal  them  or  to  prevent  the 
owner  from  finding  them  is  relevant.3  Facts  or  declarations 
prior  or  subsequent  to  the  larceny  may  be  proved  if  a  part  of 
the  res  gestae.  From  these  a  felonious  intent  may  be  inferred. 
But  the  facts  to  sustain  a  conviction  of  larceny  must  show  an 
intention  to  commit  that  crime  and  not  some  other  similar 
offense.* 

To  rebut  the  inference  of  a  felonious  intent  the  accused  must 
be  permitted  to  testify  that  he  had,  or  believed  he  had,  and 
claimed  in  good  faith  a  title  to  the  property  derived  from  its 
owner,5  or  that  he  took  the  property  for  any  innocent  purpose,6 
or  in  an  open  manner,  to  satisfy  a  claim  against  the  owner,7 
or  because  he  believed  it  to  be  his  own.8  The  intoxication  or 
mental  weakness  of  the  accused  before  the  taking  may  be 
shown,  not  in  extenuation,  but  as  a  circumstance  from  which 
absence  of  specific  intent  may  be  inferred.9 


Neb.  643,  646;  State  v.  Pratt,  98  Mo. 
482,  492;  State  v.  Leicham,  41  Wis. 
565. 

!Long  v.  State,  11  Fla.  295,  297; 
Phelps  v.  People,  55  111.  334 ;  Britt  v. 
State,  22  Tex.  App.  215,  222 ;  Waidley 
v.  State,  34  Neb.  250,  252,  51  N.  W. 
Pep.  830;  Micheaux  v.  State,  30  Tex. 
App.  660,  18  S.  W.  Rep.  550;  Pence  v. 
State,  110  Ind.  95,  99;  State  v.  Fitz- 
patrick,9  Houst.  (Del.)  385;  Green  v. 
State  (Tex.,  1896),  33  S.  W.  Rep.  120; 
Truslow  v.  State,  95  Tenn.  189;  State 
v.  Ravenscraft,  62  Mo.  App.  109;  Peo- 
ple v.  Hendrickson,  46  N.  Y.  Sup.  402. 

2  Robinson  v.  State,  113  Ind.  510, 
512. 

8  Long  v.  State,  11  Fla.  295,  297. 


4  Pence  v.  State,  110  Ind.  95,  99. 

5  State  v.  Williams,  95  Mo.  247,  250, 
8  S.  W.  Rep.  217;  Com.  v.  Stebbins,  8 
Gray  (Mass.)  492,  495. 

6  Brooks  v.  State  (Tex.,  1894,  27  S. 
W.  Rep.  141.  The  declaration  of  a 
deceased  owner  of  property  alleged  to 
have  been  stolen  that  he  gave  it  to 
the  accused  is  admissible.  People  v. 
Doyle,  58  Hun  (N.  Y.)  535,  538. 

7  People  v.  Husband,  36  Mich.  306, 
308. 

8  State  v.  Daley,  53  Vt.  442,  444; 
Hunter  v.  State  (Tex.,  1897),  37  S.  W. 
Rep.  323;  States.  Ravenscraft,  62 
Mo.  App.  109. 

9  Robinson  v.  State,  113  Ind.  510, 
513 ;  ante,  §  166. 


§293  EMBEZZLEMENT    AND    LARCENY.  353 

§  293.   The  carrying  away.— The  felonious  taking  away  of 

the  stolen  property  out  of  the  possession  of  the  owner,  though 
only  for  an  instant,  without  the  owner's  consent,  being  e  con- 
stituent element  of  the  crime,  must  usually  be  proved.1  It 
must  be  shown,  too,  that  the  accused  actually  raeanl  to  deprive 

the  owner  of  his  property  permanently  and  not  merely  to  use 
it  temporarily  in  a  mischievous  or  wanton  manner,  intending 
to  return  it.2  Evidence  that  he  was  present  when  the  taking 
occurred  may  be  sufficient,  if  his  presence  was  an  aid  to 
an  accomplice  who  did  the  carrying  away.3  Proof  of  the 
slightest  carrying  away  for  a  very  short  time,4  by  which  the 
property  is  not  taken  out  of  the  presence  of  the  owner,5  and 
also  when  immediately  thereafter  it  is  restored  to  its  former 
place,6  is  enough  if  the  accused  is  shown  to  have  obtained  full 
custody  of,  and  entire  and  absolute  control  over  the  property.7 
If  the  goods  were  lawfully  taken  by  or  delivered  to  the  accused, 
the  state  must  show  an  unlawful  conversion  or  appropriation 
by  the  accused,  as  in  embezzlement.8 

§  294.    Ownership — Character  and  proof  of. — The  ownership 
of  the  property  must  be  proved  substantially  as  laid.9     Slight 

'Mizellw.  State  (Fla.,  1897),  20  So.  Kent  v.  State  (Ark.,  1897),  41  S.  W. 

Rep.   769;  Wright  v.  State,    18  Tex.  Rep.  849. 

App.  358,  365;  Sharp  v.  State,  29  Tex.  4  Eckels  v.   State,  20  Ohio  St.  508, 

App.  211,  213,  15  S.W.  Rep.  176,  177;  513-517;    Com.   v.   Luckis.  99   Mass. 

State  v.  Wingo,  89  Ind.  204,  207  ;  Stack  431,  433 ;  Harrison  v.  People,  50  N.  Y. 

r.  State,  63  Ind.  285.     And  this  carry-  518,  522. 

ing  away   may  be  accomplished  by  5  Madison  v.  State,  16  Tex.  App.  435, 

any  removal  of  the  property  from  its  441. 

original   situation   as   would  work   a  6  Harrison  v.  People,  50  N.  Y.  518, 

complete  severance  from  the  posses-  520,  521. 

sion  of  the  owner.     State  v.  Taylor  7Rex  v.  Thompson,  1  Mood.  78. 

(Mo.,  1897),  37  S.  W.  Rep.  907;  Ed-  8  Shinn  v.  Com.,  32Gratt.  (Ya.)  899, 

monds  v.  State,  70  Ala.  8,  9;  State  v.  910;    Davis  v.   State  (Ga.,    1897),  25 

Seagler,  1  Rich.  (S.  Car.)  30;  State  v.  S.  E.  Rep.  921  ;  ante,  §  282. 

Gilbert,  68  Vt.  188,  34  Atl.  Rep.  697.  9  If  it  is  laid  in  one  person  and  is 

2Colwell  v.   State  (Tex.,    1896),   34  proved  to  be  in  another  a  conviction 

S.  W.  Rep.  615;  Pence  v.  State,  110  should    be    reversed.      McDowell    p. 

Ind.  95,  98;   Robinson   v.  State,  113  State,  68  Miss.  348,  8  So.  K<>i>.  508; 

Ind.  510,  512.  Clark  v.  State,  2!)  Tex.  App.  4:;7.  138, 

'Edmonds  v.   State,  70  Ala.  8,  9;  16  S.W.  Rep.  171;  Thurmond  o.  State 
23  -Cr.  Ev. 


354  CRIMINAL  EVIDENCE.  §  295 

discrepancies  in  proving  the  name  of  the  owner  may  be  disre- 
garded.1 The  best  evidence  of  ownership  is  the  instrument 
under  which  the  title  is  claimed,  and  it  should  be  produced,2 
though  under  most  circumstances,  ownership  of  personal 
property  may  be  proved  by  parol.  Possession  of  personal 
property  is  primary  evidence  of  ownership,3  if  it  appears  that 
theaUeged  owner  exercised  exclusive  control,  possession  and 
management  over  it.4  An  absolute  ownership  need  not  be 
proved.  Evidence  that  the  alleged  owner  held  the  property 
as  bailee  or  trustee  will  suffice.5  If  the  ownership  is  laid  in  a 
corporation  proof  of  its  de  facto  existence  is  enough,6  nor  need 
it  be  shown  that  the  corporation  was  legally  doing  business  in 
the  state.7 

§  295.  Competency  of  owner  of  stolen  goods  as  witness — 
Proof  of  his  non-consent. — At  common  law  the  owner  was  not 
incompetent  because  of  his  interest  to  testify  at  the  trial,  even 
when  he  was  entitled  to  restitution  on  conviction,8  or  to  a  fine, 
the  value  of  which  exceeded  that  of  the  goods  stolen.9  The 
non-consent  of   the  owner  must  be  proved,  as  it  can  not  be 

(Tex.,  1896),  35  S.W.  Rep.  965;  Com.  »  Underwood  v.  State,  72  Ala.  220, 

v.  Trimmer,  1  Mass.  476;  State  v.  Mc-  222;  State  v.  Brin,  30  Minn.  522,  524. 

Carty,  14  N.  H.  364;  State  v.  Burgess,  2  Edwards  v.   State,   29  Tex.    App. 

74  N.  Car.  272.    If  the  owner  is  alleged  452,  16  S.  W.  Rep.  418. 

to  be  unknown  to  the  grand  jury,  he  3  Morris  v.  State,  84  Ala.  446;  Led- 

must    be    proved    to    have  been   so.  better  v.  State,  infra. 

Sharp  v.  State,  29  Tex.   App.  211,  15  4  State  v.  Robinson,  35  La.  An.  964. 

S.W.  Rep.  176;  Logan  v.  State  (Tex.,  The  alleged  owner  is  not    the  best 

1896),  34  S.  W.  Rep.  925,  and  if  this  witness  of  the  fact  of  possession  or 

is  done,  proof  of  ownership  in  a  per-  ownership.  Lowrancer.  State,  4  Yerg. 

son   known   is   not  fatal.     People  v.  (Tenn.)  145,  146. 

Fleming,  14  N.  Y.  Supp.  200,  60  Hun  5  Ledbetter  v.  State  (Tex.,  1896),  32 

576.     If  one  person  has  a  general  and  S.W.  Rep.  903;  State  v.  Somerville,  21 

another  a  special  ownership,  the  own-  Me.  14 ;  United  States  v.  Jackson,  29 

ership  may  be  alleged  and  proved  in  Fed.  Rep.  503  (mail  matter), 

either.     Trafton  v.  State,  5  Tex.  App.  6  Com.  v.  Whitman,  121  Mass.  361. 

480,  484.     So  an  allegation  of  owner-  7  State  v.  Hopkins,  56  Vt.  250. 

ship  by  A.  is  not  sustained  by  proving  8  State  v.  Casados,  1  N.  &  McC.  (S. 

a  joint  ownership  in  A.  and  B. ;  State  Car.)  91. 

v.  Burgess,  74  N.  Car.  272,  273.  9  State  v.  Pray,  14  N.  H.  464,  466; 

Com.  v.  Monlton,  9  Mass.  29,  30. 


§  296  EMBEZZLEMENT    AND    LARCENY.  355 

presumed  from  the  taking.1  His  testimony,  where  he  had  the 
exclusive  custody  and  control  of  the  property,  and,  where  he 
has  delegated  his  power  of  management  to  another,  the  testi- 
mony of  this  agent  with  his  own  evidence  is  primary  evidence 
to  prove  non-consent.2 

Other  evidence  is  not  admissible  until  the  absence  of  the 
owner  or  of  his  agent  has  been  satisfactorily  accounted  for.8 
If  this  is  done,  non-consent  may  be  proved  by  circumstantial 
evidence,4  provided  the  circumstances  proved  are  such  as  ex- 
clude every  reasonable  presumption  that  the  owner  consented,5 
as,  for  example,  by  showing  that  he  was  searching  for  his 
property  soon  after  the  theft,6  or  by  the  declarations  of  the  ac- 
cused to  the  effect  that  he  had  parted  with  possession  and  that 
the  owner  could  not  have  his  property.7  Evidence  that  the 
owner  furnished  an  opportunity  to  a  suspected  person  to  com- 
mit a  larceny,  for  the  purpose  of  detecting  and  arresting  him, 
is  inadmissible  to  show  he  consented  to  part  with  his  property.8 

§  296.  Identifying  the  stolen  property. — The  identity  of  the 
stolen  property  must  be  established  substantially  as  laid  in  the 
indictment.  Where  cattle  are  described  by  age,  color,  spe- 
cies or  brand,  these  details  become  material  and  a  variance  is 
fatal.9     It  is  unnecessary  that  the  stolen  property,  even  though 

1  State  v.  Storts   (Mo.,  1897),  39  S.        5  Wilson  v.  State,  45  Tex.  76,  78. 
W.  Rep.  483;  Garcia  v.  State,  26  Tex.        6  Rains  v.  State,  7  Tex.   App.  588. 
209,  210;  Wilson  v.  State,  12  Tex.  App.  Cf.  State  v.  Porter,  26  Mo.  201,  207. 
481,487.  'People  v.   Dean,  58  Hun  610,  12 

2  State  v.  Moon,  41  Wis.  684,  686;  N.  Y.  Supp.  749. 

Bubster  v.  State,  33  Neb.  663,  664,  50  8  Varner  v.  State,  72  Ga.  745,  746. 

N.  W.  Rep.  953;  Jackson  v.  State,  7  9  State  v.  Jackson,  30  Me.    29,  30; 

Tex.  App.  363,  364;  Wilson  v.  State,  Wiley  v.  State,  74  Ga.  840;  Hooker  v. 

12  Tex.  App.  481.  State,  4  Ohio  348,  351 ;  Banks  v.  State, 

8  State  v.  Osborne,  28  Iowa  9;  State  28  Tex.  644,    647;  Bush  v.  State,  18 

v.  Morey,  2  Wis.  494,  496.  Ala.  415,  416;  Whart.  Cr.  Ev.,  §  124; 

4  Carroll  v.  People,  136  111.  456,  465,  Robertson  v.  State,  97  Ga.  206,  22  S.  E. 

466,  27  N.  E.  Rep.  18;  Rex  v.  Hazy,  2  Rep.  974;  Mizell  v.  State  (Fla.,  1896), 

C.  &  P.  458;  State  v.  Skinner  (Ore.,  20  So.  Rep.  769.  If  a  statutory  distinc- 

1897),  46  Pac.  Rep.   368;    Trafton  v.  tion  is  made  between  the  species  of 

State,  5  Tex.  App.  480;  Files  v.  State  any  animal,  proof  of  one  is  a  variance 

(Tex.,  1896),  36  S.  W.  Rep.  93 ;  State  if  another  is  alleged.  State  v.  Buckles, 

v.  Porter,  26  Mo.  201,  203,  2  Russ.  737.  26  Kan.  237,  241.     Otherwise,  where 


!56 


CRIMINAL    EVIDENCE. 


29G 


bank  notes,  should  be  produced  as  evidence  in  court,1  though 
this  may  be  done2  if  the  articles  are  first  identified  as  having  been 
stolen.*  If  the  article  is  not  produced  the  owner  may  testify  to 
the  marks  thereon.4  But  a  witness  can  not  be  permitted  to 
prove  a  previous  description,  not  verified  by  oath,  which 
he  received  from  a  person  who  went  in  search  of  the  stolen 
property/  or  to  testify  that  such  a  description  corresponds 
with  his  recollection.  A  witness  to  the  idenity  of  the  prop- 
erty need  not  be  positive  but  may  give  his  opinion  based  in 
personal  knowledge,6  though  a  witness  will  not  be  permitted  to 
testify  that  on  the  previous  date  the  owner  identified  it.7  An 
indictment  for  stealing  chickens,8  a  cow,9  a  horse,10  or  a  hog,11  is 
sustained  by  proof  of  the  larceny  of  any  variety  or  sex  of  the 
animal.12  Money  or  valuable  securities  stolen  must  be  prop- 
erly identified,  and  the  proof  of  the  money  missing,  or  which 
was  found  in  the  possession  of  the  prisoner,  must  agree  sub- 
stantially with  that  alleged  in  the  indictment.  So  where  it  is 
alleged  that  bank  notes,13  promissory  notes,14  treasury  notes,15  or 

no  distinction  is  made.  People  v. 
Pico,  62  Cal.  50,  52;  State  v.  Hill,  65 
Mo.  84,  85 ;  Wiley  v.  State,  3  Coldw. 
(Tenn.),  362,  375;  Turley  v.  State,  3 
Humph.  323,  324. 

1  Moore's  Case,  2  Leigh  (Va.)  701, 
706 ;  Spittorff  v.  State,  108  Ind.  171. 172. 

"Ledbetter  v.  State  (Tex.,  1896),  32 
S.W.  Rep.  903;  Luev.  Com.  (Ky.),  15 
S  .  W.  Rep.  664. 

8  Buchanan  v.  State,  109  Ala.  7.  19 
So.  Rep.  410. 

4  State  v.  Ballard,  104  Mo.  634,  637, 
16  S.  W.  Rep.  525. 

6Whizenant  v.  State,  71  Ala.  383, 
385. 

6Misseldine  v.  State,  21  Tex.  App. 
335;  State  v.  Lockwood,  58  Vt.  378; 
380;  State  v.  Babb,  76  Mo.  501,  404; 
State  v.  Murphy  15  Wash.  98,  45  Pac. 
Rep.  729. 

'Anderson  v.  State,  14  Tex.  App. 
49,  52.  Where  the  owner  identified 
goods  found  in  defendant's  possession 
from  their  quality  and  color  the  de- 


fendant should  be  allowed  to  show, 
by  a  witness  having  experience  in  such 
matters,  that  a  merchant  can  not 
identify  goods  from  color  and  quality 
alone.  Buchanan  v.  State,  109  Ala. 
7,  19  So.  Rep.  410. 

8  State  v.  Bassett,  34  La.  An.  1108. 

9  Parker  v.  State,  39  Ala.  365. 

10  Davis  v.  State,  23  Tex.  App.  210, 
211. 

11  State  v.  Godet,  7  Ired.  (N.  Car.) 
210,  211. 

12  It  will  be  presumed  that  the  ani- 
imals  alleged  to  have  been  stolen  were 
alive.  If  they  were  dead  it  should  be 
so  stated,  for  an  indictment  for  steal- 
ing an  animal  is  not  sustained  by 
proof  of  stealing  a  carcass.  Rex  v. 
Holloway,  1  C.  &  P.  127 ;  Com.  v.  Bea- 
man,  8  Gray  (Mass.)  497,  499. 

13  Pomeroy  v.  Com.,  2  Va.  Cas.  342. 
"Stewarts.  State,  62  Md.  412,  415. 
15  State  v.  Collins,  72  N.  Car.  144, 

145 ;  Keating  v.  People,  160  111.  480. 


§  297  EMBEZZLEMENT    AND    LARCENY.  357 

money,1  were  stolen  the  proof  must  correspond  with  the  alle- 
gation, and  any  material  variance  will  be  fatal.  But  strict  proof 
of  the  identity  of  money  is  not  required.  So  where  several 
bills  of  high  denomination  were  stolen,  evidence  was  received 
to  show  that  the  accused  had  bills  of  that  sort  in  his  posses- 
sion after  the  larceny,  though  before  he  had  been  destitute.2 

Evidence  of  the  genuineness  and  value  of  stolen  bank  bills, 
or  of  the  corporate  existence  of  the  bank,  is  proper,  though 
usually  the  jury  may  infer  these  facts,3  as  from  an  admission 
by  the  accused  that  he  had  passed  them  for  value.4  Parol  evi- 
dence may  be  given  to  prove  the  genuineness  of  stolen  bank 
notes  or  checks,  without  producing  them  or  accounting  for 
their  non-production.5  A  failure  to  produce  the  bank  notes, 
though  a  circumstance  which  the  jury  may  consider  as  favor- 
ing the  prisoner's  innocence,  does  not  render  parol  evidence 
of  their  value  incompetent.  If  they  are  produced,  it  is  not 
necessary  to  call  the  officers  of  the  bank  to  prove  them  genuine.6 

§  297.  Recorded  brands  of  cattle. — Brands  or  marks  upon 
cattle,  duly  recorded  according  to  law,  must  sometimes  by  stat- 
ute be  proved,  if  necessary  to  identify  stolen  animals,  by  a  copy 
of  the  record.  The  statute  does  not  make  marks  and  brands 
evidence  of  identity,  for  they  are  already  so  intrinsically. 
But  the  statute  requiring  them  to  be  recorded  renders  the  rec- 
ord admissible  as  evidence.7     A  witness  who  has  seen  the  ani- 

1  Lancaster  v.  State,  9  Tex.  App.  411,416.  See,  also,  Hildreth  v.  People, 
393,  395.  32  111.  36,  38. 

2  People  w.Wilkinson,  60  Hun  582,  14  5  People  v.  Holbrook,  13  Johns.  90, 
N.Y.Supp.  827;  Keating  v.  People,  160  93;  Milne's  Case,  2  East  C.  L.  602; 
111.480,43  N.E.Rep.  724 ;  Com.r.Mont-  State  v.  Mayberry,  48  Me.  218,  238; 
gomery,  11  Mete.  (Mass.)  534,  537.  Com.  v.  Messinger,  1  Binn.  (Pa.)  273, 
On  trial  for  the  larceny  of  a  roll  of  275,  278;  Williams  v.  State,  34  Tex. 
bills,  the  identification  of  a  roll  of  Cr.  Rep.  523,  31  S.  W.  Rep.  405,  406 ; 
paper  with  a  single  bill  wrapped  McGinnis  v.  State,  24  Ind.  500,  506, 
around  it  to  represent  the  roll  taken  507. 

is  not  error.  Keating  v.  People,  160111.  6  Moore's  Case,  2  Leigh  (Va.)  701, 

480,  43  N.  E.  Rep.  724.  706. 

8  Clark  v.  State,  14  Ind.  26;  Collins  7  Thompson  v.  State,  26  Tex.  App. 

v.  People,  39  111.  233,  241.  466,  476,  9  S.  W.  Rep.  760;  Brooke  r. 

4  Baldwin  v.  State,  1  Sneed  (Tenn.)  People  (Colo.,  1S97),48  Pac.Rep.502. 


358 


CRIMINAL    EVIDENCE. 


§  298 


mal  alleged  to  have  been  stolen  may  describe  any  marks  which 
he  may  have  observed.1  A  witness  may  always  be  permitted 
to  state  that  it  is  difficult  to  identify  cattle,  because  of  the 
similarity  of  marks  on  them.2 

§  298.  Evidence  of  venue  and  of  the  value  of  money  or  prop- 
erty.— The  burden  of  proving  the  venue  as  laid,  and  beyond 
a  reasonable  doubt,3  is  upon  the  state,  though,  if  the  state  shall 
omit  to  prove  the  venue  specifically,  the  jury  may  infer  it  from 
all  the  evidence  on  both  sides.4  An  allegation  of  larceny  in 
one  county  is  supported  by  evidence  of  a  taking  in  another, 
and  a  transportation  into  the  county  where  the  venue  is  laid.5 
The  property  taken  must  be  proved  to  have  some  value,6  though 
the  value  alleged  need  not  be  proved  unless  proof  of  value  is 
necessary  to  fix  the  grade  of  the  offense.7  Direct  evidence  prov- 
ing the  precise  value  may  not  be  required.  The  jury  may 
infer  that  the  stolen  property  has  value  from  evidence  of  its 
character  and  use,8  and  a  non-expert  witness  may  always 
testify  to  the  value  of  the  property.9 

The  courts  will  notice  judicially  the  meaning  of  words  used 
to  designate  the  circulating  medium,  its  value,  and  that  of  all 
moneys,  foreign  or  domestic,  whose  value  is  established  by 
law.10     Evidence,    therefore,    that    the  property   consisted     of 


1  Lockwood  v.  State,  26  S.  W.  Rep. 
200;  Eisner  v.  State,  22  Tex.  App. 
687,  688;  Tittle  v.  State,  30  Tex.  App. 
597,  599,  17  S.  W.  Rep.  1118.  But 
proof  of  the  brand  to  show  ownership 
is  not  indispensable  unless  it  is  the 
only  evidence.  Wolf  v.  State,  4  Tex. 
App.  332. 

2Lue  v.  Com.  (Ky.,  1889),  15  S.  W. 
Rep.  664.  The  ears  and  dewlaps  of  a 
cow  have  been  allowed  to  be  exhib- 
ited, to  identify  the  animal  and  to 
show  that  the  brand  had  been  muti- 
lated. State  v.  Crow,  107  Mo.  341, 
350,  17  S.  W.  Rep.  745.  And  compare 
Mizell  v.  State  (Fla.,  1897),  20  So.  Rep. 
769. 

8Harsdorf  v.  State  (Tex.),  18  S.  W. 


Rep  415 ;  Move  v.  State,  65  Ga.  754, 755 ; 
Throckmorton  v.  Com.  (Ky.,  1894), 
29  S.  W.  Rep.  16. 

4  Scott  v.  State,  42  Ark.  73,  77. 

5  Com.  v.  Dewitt,  10  Mass.  154,  155; 
People  v.  Burke,  11  Wend.  (N.  Y.) 
129,  4  Bl.  Com.  305.  Cf.  State  v.  Bart- 
lett,  11  Vt.  650. 

6  Powell  v.  State,  88  Ga.  32,  33; 
Parker  v.  State,  110  Ala.  688,  20  So. 
Rep.  641;  Com.  v.  McKenney,  9  Gray 
(Mass.)  114. 

7  Com.  v.  Riggs,  14  Gray  (Mass.)  376. 
8Com.i>.  McKenney,  9  Gray  (Mass.) 

114,  116;  Whalen  v.  Com.,  90  Va.  544, 
19  S.  E.  Rep.  182. 

9  State  v.  Finch,  70  Iowa  316,  317. 

10Underhill  on  Ev.,  §237. 


§  299  EMBEZZLEMENT    AND    LARCENY.  359 

bank  notes  or  any  description  of  money  will  always  sustain  an 
inference  that  it  was  of  some  value.1  Securities,  as  stock  cer- 
tificates, whose  real  value  is  not  proved,  will  be  presumed  to 
have  a  nominal  value.2  When  evidence  of  value  is  relevant 
to  determine  the  grade  of  the  offense,  the  accused  may  show 
that  the  value  of  tbe  property  is  such  that  he  should  be  con- 
victed of  petty  larceny.  Usually  the  market  value3  at  the  time 
and  place  of  the  theft4  is  the  only  proper  evidence.  But  the 
owner's  opinion  as  to  the  value  of  the  property  has  been 
received.5  The  jury  may  fix  the  value  of  the  property  accord- 
ing to  the  highest  estimate  of  any  witness.6 

§  299.    Inference  from  possession  of   the  property  stolen. 

— The  rules  which  are  elsewhere  explained,7  in  connection 
with  the  question  of  a  presumption  of  guilt  arising  where 
property  stolen  from  a  house  in  which  a  burglary  has  been 
committed  is  found  in  the  possession  of  the  accused,  are  appli- 
cable on  an  indictment  for  larceny. 

According  to  the  most  approved  modern  view,  the  possession 
of  stolen  property,  however  recent  and  unexplained,  creates  no 
presumption  of  law  that  the  possessor  committed  the  larceny, 
and  consequently  a  conviction  of  larceny  based  upon  an  in- 
struction to  that  effect,  and  casting  the  burden  of  proving  the 
innocent  character  of  the  possession  upon  the  accused,  must  be 
set  aside.  The  fact  of  the  possession  of  stolen  goods  may 
always  be  shown.  From  proof  of  this  fact,  in  connection  with 
other  evidence,  the  jury  may  infer  as  a  matter  of  probability 
and  reasoning,  but  not  as  a  rule  of  law,  that  is,  they  may,  un- 

1  Nelson  v.  State  (Tex.,  1896),  32  S.  3 State  v.  Brown,  55  Kan.  611,  40 
W.  Rep.  900;  McDowell  v.  State  Pac.  Rep.  1001;  Cannon  v.  State,  18 
(Miss.,  1897) ,  20  So.  Rep.  864 ;  Vincent    Tex.  App.  172,  173. 

v.  State,  3  Heisk.  (Tenn.)   120,  126;        4  People  v.  Cole,  54  Mich.  238,  239. 

Bagley  v.  State,  3  Tex.  App.  163,  169;  '  5Com.  v.  Stebbins,  8  Gray  (Mass.) 

Duvall  v.  State,  63  Ala.  12,  15.  492,  495 ;  People  v.  Kehoe,  64  Hun  636, 

2  People  v.  Griffin,  38  How.  Pr.  Rep.  19  N.  Y.  Supp.  763. 

(N.  Y.)  475,  480;  Whalen  v.  Com.,  90        6  Lane   v.  State  (Tex.,  1894),  28  S. 
Va.  544,  549;  Rooney  v.  State  (Neb.,     W.  Rep.  202,  203. 
1897),  71  N.  W.  Rep.  309.  7  See  post,  §  378. 


560 


CRIMINAL    EVIDENCE. 


§   300 


tier  the  judicious  guidance  of  the  court,  draw  the  inference  of 
fact  that  the  possessor  is  guilty  of  stealing  them.1 


§  300.    Recent  and  exclusive  character  of  possession. — The 

possession  must  not  be  too  remote  in  time  from  the  theft,  or  it 
will  not  have  much  value  as  evidence.2  The  lapse  of  time  be- 
tween the  taking  and  the  date  of  the  possession  is  a  very 
important  circumstance.  If  it  is  so  great  that  no  connection 
between  them  can  reasonably  be  imagined,  evidence  of  posses- 
sion is  of  little  weight,  and,  in  an  extreme  case,  it  ma}r  be 
excluded  as  irrelevant. 

But  possession  of  the  property  so  soon  after  the  theft  that  the 
possessor  could  not  have  obtained  it  unless  he  had  just  stolen 
it,  may,  in  the  absence  of  a  credible  explanation,  sustain  a  con- 
viction.3 As  the  intervening  time  lengthens  the  cogency  of 
this  evidence  diminishes.4  But  the  period  intervening  which 
ought  to  nullify  any  presumption  from  possession  can  not  be 
fixed,  depending  not  so  much  on  mere  lapse   of  time  as  on 


1  People  v.  Wong  Chong  Suey,  110 
Call  17,42  Pac.R.420;  People  u.St.Clair 
(Cal.,  1896),  44  Pac.  R.  234 ;  Phillips  v. 
State  (Tex. ,1896),34S.W. Rep. 119  ;Orr 
v.  State,  107  Ala.  35,  18  So.  Rep.  142 ; 
Hix  v.  People,  157  111.  382,  41  N.  E. 
Rep.  862;  State  v.  Wilson  (Iowa, 
1896),  64  N.  W.  Rep.  266;  Dobson  v. 
State,  46  Neb.  250,  64  N.  W.  Rep.  956; 
State  v.  Velarde,  59  Cal.  457,  563; 
Smith  v.  People,  103  111.  82,  85;  State 
v.  Raymond,  46  Conn.  345;  Under- 
wood v.  State,  72  Ala.  220,  222;  Boy- 
kin  v.  State,  34  Ark.  443,  445,  446; 
State  v.  Hoffman,  53  Kan.  700,  708, 
709;  State  v.  Hodge,  50  N.  H.  510; 
Ingalls  v.  State,  48  Wis.  647;  Conk- 
wrightw.  People,  35  111.  204;  State  v. 
Pennyman,  68  Iowa  216,  217 ;  Harper 
v.  State,  71  Miss.  202,  203:  State  v. 
Jennett,  88  N.  Car.  665,  667;  Com.  v. 
Montgomery,  11  Mete.  (Mass.)  534; 
Blakeru.  State,  130  Ind.  203;  Sahlin- 
ger  v.  People,  102  111.  241 ;  Shepperd 


v.  State,  94  Ala.  102,  10  So.  Rep.  663; 
Gravely  v.  Com.,  86  Va.  396, 400 ;  Pace 
v.  State  (Tex.,  1894),  31  S.  W.  Rep. 
173.  The  possession  of  a  box  in  which 
stolen  goods  were  packed  may  be 
equivalent,  in  force  and  effect,  to  the 
possession  of  the  goods.  People  v. 
Block,  15  N.  Y.  Sup^p.  229,  60  Hun  583. 

2  Goldstein  v.  People,  82  N.  Y.  231; 
Davis  v.  State,  50  Miss.  86,  94,  95; 
Com.  v.  Montgomery,  11  Mete.  (Mass.) 
534;  Beck  v.  State,  44  Tex.  430,  432; 
Sloan  v.  People,  47  111.  76,  2  Russ.  on 
Crimes,  123;  Graves  v.  State,  12  Wis. 
659. 

3Blaker  v.  State,  130  Ind.  203,  205, 
29  N.E.  Rep.  1077,  1078;  Branson  v. 
Com.,  92  Ky.  330,  17  S.  W.  Rep.  1019; 
Brown  v.  State,  59  Ga.  456,  458; 
Madden  v.  State  (Ind.,  1897),  47  N. 
E.  Rep.  220. 

4  State  v.  Jennett,  88  N.  Car.  665, 
66;  Martin  v.  State,  104  Ala.  71,  16 
So.  Rep.  82,  84. 


§  301  EMBEZZLEMENT    AND    LARCENY.  361 

other  circumstances  and  the  defendant's  declarations  explana- 
tory of  the  possession.1 

Though  the  element  of  time  is  important,  other  facts  are  to 
be  considered;  among  them  is  the  character  of  the  goods,  for 
if  they  are  light  and  portable,  such  as  coin,  bank  notes  or 
jewelry,  which  pass  easily  and  quickly  from  hand  to  hand, 
possession  a  few  days  after  the  theft  might  not,  as  matter  of 
law,  be  recent.2  The  reverse  is  true  when  the  goods  are  bulky 
and  cumbersome.  But  generally  the  recency  of  possession  is 
a  question  for  the  jury  on  all  the  evidence. 

Not  only  must  the  possession  be  recent,  but  it  must  be  per- 
sonal, exclusive,  and  with  a  distinct,  implied  or  express  asser- 
tion of  ownership.  If  these  essentials  are  not  proved,  a 
conviction  based  on  the  fact  of  possession  must  be  set  aside.3 
A  mere  constructive  possession  is  not  enough.  The  accused 
will  not  be  presumed  to  have  stolen  articles  which  he  does  not 
know  he  possesses.  If  other  persons  have  equal  right  and 
facility  of  access  with  him  to  a  room,  trunk  or  closet  where 
stolen  goods  are  discovered,  possession,  not  being  exclusive  or 
personal,  is  of  no  value  as  evidence.4 

§301.  Burden  of  explaining  possession — Character  of  ex- 
planatory evidence. — Though  hardly  accurate  to  say  that  the 
burden  of  explaining  the  possession  of  stolen  property  is  upon 

1  State  v.  Miller,  45  Minn.  521,  522;  Eep.  613;  People  v.  Wilson,  151  N.  Y. 
Davis  v.  State,  50  Miss.  86, 94,  95 ;  State    403,  45  N.  E.  Rep.  862. 

r.  Jcnnett,  88  N.  Car.  665,  667 ;  State  4  3  Greenl.  on  Ev.  33 ;  State  v.  Wilks, 

t».  Lange,  59  Mo.  418,  422.  58  Mo.  App.  159, 162.     "  If  the  article 

2  State  r.  Castor,  93  Mo.  242,  250;  is  small  and  easily  transmissible  from 
Davis  v.  State,  50  Miss.  86,  95;  Rex  v.  one  place  to  another,  and  when  it  is 
Partridge,  7  C.  &  P.  551.  found  in  the  possession  of  the  accused 

8  State  v.  Castor,  93   Mo.   242,  250;  is  openly  exposed  where  the  owner 

Clark  v.  State,  30  Tex.  App.  402,  17  S.  may  find   it,  and  will  probably  dis- 

W.   Rep.   942;  People   r.    Hurley,  60  cover  it,  and  he  makes  no  effort  to 

Cal.  74,  75;  Blaker  v.  State,  130  Ind.  conceal  it,  but  gives  an  account  of  his 

203,  205;  People  v.   Wilson,    7    App.  possession,  which   is    probable   from 

Div.  326,  40  N.  Y.   Supp.    107;    State  the  nature  of  the  article,  these  circum- 

r.  Lackland,  136   Mo.   26,   37   S.   W.  stances  would  be  sufficient  to  destroy 

Rep.   812;    State    v.     Deyoe     (Iowa,  any   presumption   from    possession." 

1896),   66  N.  W.  Rep.    733;  Funder-  Jones  v.  State,  30  Miss.  653,  655. 
burg  v.  State  (Tex.,  1896),   34  S.  W. 


362  CRIMINAL  EVIDENCE.  §  301 

the  accused,1  yet  he  must  offer  some  reasonable  and  probable 
explanation.  It  is  reversible  error  not  to  permit  him  to  do  so, 
or  to  reject  any  relevant  evidence  tending  to  produce  that 
result.  If,  having  the  power  and  opportunity  he  offers  no 
explanation,2  or  one  which  is  unsatisfactory  in  that  it  does  not 
show  that  the  character  of  his  possession  is  consistent  with 
innocence,  a  conviction  will  be  justified.3  He  may  prove  that 
he  bought  the  goods,4  that  he  offered  to  pay  the  owner  for 
them,5  or  that  he  became  possessed  of  them,  believing  he  was 
the  owner's  agent.6  These  and  other  explanatory  facts  may  be 
shown  even  where  the  defendant  has  failed  or  refused  to  give 
a  satisfactory  explanation  of  the  possession  of  the  property 
when  it  was  first  found  in  his  possession.7  If  the  explanatory 
evidence  creates  a  reasonable  doubt  in  the  minds  of  the  jurors 
that  he  stole  the  property,  he  should  be  acquitted.8  It  is  not 
absolutely  requisite  that  the  accused  should  prove  that  his 
possession  was  honest.  It  is  sufficient  to  acquit  him  if  he 
gives  a  natural,  reasonable  and  probable  explanation  which 
the  prosecution  does  not  show  to  be  false.9  Such  an  explana- 
tion  may  be  taken  as  true  if  the  state,  relying    upon  recent 


1  Baker  v.  State,   80  Wis.  416,  421.  'Harris  v.  State,  15  Tex.  App.  411. 
Cf.  Waters  v.  People,  104  111.  544, 548.  8  State  v.  Peterson,  67  Iowa  564,  567 ; 

2  Adams  v.  State,  52  Ala.  379,  381 ;  Grentzinger  v.  State,  31  Neb.  460,  462, 
Tilly  v.  State,  21  Fla.  242,  249.  48  N.  W.  Rep.  148;  Clark  v.  State,  30 

3 States.  Garvin  (S.   Car.,  1897),  26  Tex.   App.   402;   17   S.  W.  Rep.  942; 

S.    E.    Rep.   570;     Franklin   v.   State  Baker    v.    State,    80   Wis.    416,   421; 

(Tex.,  1897),  39  S.  W.  Rep.  680;  State  Blaker  v.   State,    130    Ind.  203,   207; 

v.  Hogard,  12  Minn.  293;    Mondragon  State  v.  Wilson    (Iowa,    1896),  64  N. 

v.  State,  33  Tex.  480;  State  ».  Miller,  W.  Rep.  266;  State  v.   Cross    (Iowa, 

45  Minn.  521,  522;  Tilly  v.  State,  21  1896),  64  N.  W.  Rep.  614;  Gilmore  v. 

Fla.  242,249;  State  v.  Jennings,  81  Mo.  State  (Tex.,  1896),  33  S.  W.  Rep.  120; 

185,  209 ;  Waters  v.  People,  104  111.  544,  Crawford  v.  State  (Ala.,  1897),  21  So. 

548;  Com.  v.  McGorty,  114  Mass.  299.  Rep.  64;   State  v.  Dillon,  48  La.  An. 

4  Jones  v.  People,  12  111.  259.     In-  1365,  20  So.  Rep.  913. 

eluding     all    pertinent     declarations  9  Hart  v.  State,  22  Tex.  App.   563; 

made  by  himself  or  the  vendors.  Peo-  Garcia    v.   State,   26    Tex.    209,  210; 

pie  v.  Dowling,  84  N.  Y.  478,  485.  State  v.  Moore,  101  Mo.  316;  Jones  v. 

5  Hall  v.  State,  34  Ga.  208,  210.  State,  30  Miss.  653,  655  ;  State  v.  Cas- 

6  Lewis  «.  State,  29  Tex.  App.  201,14  tor,  93   Mo.   242,  250;    Yarbrough  v. 
S.  W.  Rep.  1008;  Chambers  v.  State,  State  (Ala.,  1897),  22  So.  Rep.  534. 

62  Miss.  108. 


§  302  EMBEZZLEMENT    AND    LARCENY.  363 

possession  alone,  does  not  prove  its  falsity  or  attempt  to  do  so.1 
If  the  explanation  is  absurd,  unreasonable  or  unsatisfactory 
it  is  the  right  of  the  jury,  and  often  their  duty,  to  disregard  it 
though  no  evidence  in  rebuttal  on  that  point  is  offered.2  But 
when  the  explanation  offered  is  reasonable  and  probable  it  must 
be  overcome,  and  its  falsity  shown  by  positive  and  definite 
evidence.  Direct  evidence  is  not  always  essential.  Circum- 
stantial evidence  will  answer  if  upon  all  the  evidence  the 
prosecutor  shall  succeed  in  convincing  the  jury  of  the  guilt  of 
the  prisoner  beyond  a  reasonable  doubt.3 

§  302.  Explanatory  declarations. — Any  declaration  made  by 
the  accused  explaining  the  reason  or  character  of  his  posses- 
sion, if  made  while  it  lasts,  is  admissible  as  a  part  of  the  res 
gestse  for  or  against  him.4  Under  the  older  authorities,  the 
defendant's  declarations  were  not  admissible  in  his  favor,  if 
made  after  his  possession  had  terminated.  This  rule  is  now 
somewhat  relaxed,  but  not  to  the  extent  of  permitting  proof  of 
his  self-serving  declarations  made  at  all  times  and  under  all 
circumstances.  Where  no  previous  opportunity  for  explana- 
tion arose,  he  may  now  prove  his  statements  made  when  ar- 
rested, or  when  charged  with  theft,  or  informed  he  is  sus- 
pected, though  he  has  parted  with  possession.  The  declara- 
tion must  have  been  uttered  at  the  first  moment  he  was  ex- 
pressly or  by  implication  called  on  to  explain.5 

1  People  v.  Hurley,  60   Cal.  74,   77;  upon  the  owner.    Watson  v.  State,  36 

Powell  v.   State,   11  Tex.    App.   401,  Miss.  593,  609,  610. 

402;  Johnson  v.  State,  12  Tex.  App.  4  Walker  v.  State,  28  Ga.  254,  256; 

385,  391 ;  State  v.  Kimble,  34  La.  An.  Hubbard  v.  State,  109  Ala.  1,  18  So. 

392,  395,  3  Greenl.  on  Evidence,  32.  Rep.  225;  Smith  v.  State,  108  Ala.  1, 

2Tilley  v.  State,  21  Fla.  242,  249.  16  So.  Rep.  12,  14;  State  v.  Moore,  101 

3 Franklin  v.  State   (Tex.,  1897),  39  Mo.  316,  331;    Whart.  C.  E.,   §  761. 

S.  W.  Rep.  680;  State  v.  Schaffer,  70  The  fact  of  possession,  or  acts  evinc- 

Iowa  371,   375;    Brown   v.    State,   34  ing  ownership,  must  always  be  proved 

Tex.  Cr.  Rep.  150,  29  S.  W.  Rep.  772.  prior  to  the  admission  of  the  declara- 

So  when  the  accused  produces  a  bill  tions.     Cameron  v.  State,  44  Tex.  652, 

of  sale  to  account  for  his  possession  656. 

the  state  may  be  permitted  to  show  5  Ward  v.  State,  41  Tex.  611,  613; 

its  invalidity    because    procured   by  Taylor  v.  State,  15  Tex.  App.  356,  360; 

undue  influence  and  fraud  practiced  Carreker  v.  State,  92  Ga.  471. 


364  CRIMINAL    EVIDENCE.  §  303 

Some  of  the  cases  admit  only  such  declarations  as  were  made 
at  the  instant  the  defendant  is  discovered  in  possession,1  and 
obviously  declarations  made  after  the  accused  has  had  ample 
time  to  concoct  an  explanation  are  inadmissible.2  Though  the 
declarations  of  the  accused  are  admissible  against  him,  the 
statements  of  a  third  person,  having  charge  of  the  stolen  prop- 
erty, are  not  admissible  when  they  were  not  made  in  the  pres- 
ence of  the  accused.8  The  presumption  arising  from  posses- 
sion may  be  wholly  rebutted  by  proof  of  the  good  character 
alone  of  the  prisoner.4 

§  303.  Evidence  of  footprints. — Evidence  of  the  identity  of 
the  accused  with  the  person  who  committed  the  theft,  derived 
from  a  comparison  of  foot-tracks,  is  admissible,  as  in  the  case 
of  prosecutions  for  burglary,  homicide  and  arson.8  On  a  prose- 
cution for  larceny,  it  may  be  shown  that  the  accused  had  pur- 
chased boots  and  shoes  of  the  same  size  as  those  worn  by  a  per- 
son whose  foot-tracks  were  discovered  in  the  vicinity  of  a  house 
from  which  property  was  stolen.6  Evidence  that  wagon  or 
foot-tracks  were  observed  on  a  road  leading  from  a  place  whence 
the  stolen  property  was  taken  to  where  it  was  hidden,  near  the 
house  of  the  accused,  may,  if  unexplained  or  unrebutted,  and 
particularly  if  there  be  some  marked  peculiarity  in  their  form 
or  character,  with  proof  that  the  stolen  property  was  found  in 
the  possession  of  the  defendant,  support  a  conviction.7 

§  304.  Financial  standing  and  expenditures  of  the  defen- 
dant.— Evidence  that  the  defendant  had  always  been  poor,  or 
was  living  extravagantly  and  beyond  his  means,8  or  that  he 
was  generally  reputed  to  be  in  good  circumstances,9  or  as  to 

1  State  v.  Moore,  101  Mo.  316,  331 ;  6  State  v.  Reed,  89  Mo.  168,  170. 
Henderson  v.  State,  70  Ala.  23,  25;  2  7  Bryan  v.  State,  74  Ga.  393,  394; 
Bish.  Cr.  Pro.,  §  746.  Holsey  v.  State,  89  Ga.  433,  434,  15  S. 

2  State  v.  Moore,  101  Mo.  316,  330;  E.  Rep.  588. 

Cooper  v.  State,  63  Ala.  80,  81,  82.  8  Snapp   v.   Com.,  82   Ky.  173,  183, 

3  State  v.  May,  20  Iowa  305.  184. 

♦People  v.  Hurley,  60  Cal.  74,  77.  9Com.  v.  Stebbins,  8  Gray  (Mass.) 

5  See  §  337.  492, 495. 


§  305 


EMBEZZLEMENT    AND    LARCENY. 


365 


the  wages  he  was  receiving,1  either  before  or  after  the  larceny, 
is  alike  inadmissible.  But  evidence  that,  though  in  moderate 
circumstances  before  the  larceny,  he  was  profuse  in  his  subse- 
quent expenditures,2  or  that  he  spent  a  sum  of  money  about 
the  date  of  the  larceny  nearly  equivalent  to  what  the  stolen 
property  may  have  sold  for,  is  admissible.3 

§  305.  Evidence  of  other  crimes. — Evidence  of  distinct  lar- 
cenies by  the  accused  is  not  generally  admissible,  though  to 
this  rule  many  important  exceptions  are  made.4  It  may  be 
proper  to  prove  that  other  persons  had  their  property  stolen 
and  that  it  was  found  in  the  possession  of  the  accused,  to  show 
his  felonious  intention  and  guilty  knowledge,  or  to  identify 
him  as  the  person  mentioned  in  the  indictment.5  The  accused 
must  then  be  allowed  to  explain  his  possession  of  the  other 
stolen  property.6  In  many  cases  where  the  crimes  are  separate 
and  distinct,  in  time,  place  or  character,  the  courts  refuse  to 
admit  evidence  of  similar  crimes,  even  to  show  a  criminal  in- 
tent. This  is  particularly  the  case,  if  the  evidence  connecting 
the  accused  with    the  similar  offense  is  very  slight,   remote 


1  Dorsey  v.  State,  110  Ala.  38,  20  So. 
Rep.  450. ' 

'  Perrin  v.  State,  81  Wis.  135,  140, 
50  N.  W.  Rep.  516;  Leonard  v.  State 
(Ala.,  1897),  22  So.  Rep.  564. 

8  Com.  v.  Grose,  99  Mass.  423,  424. 
Cf.  Fulmer  v.  Com.,  97  Pa.  St.  503; 
Com.  v.  Montgomery,  11  Mete.  (Mass.) 
534,  534;  State  v.  Grebe,  17  Kan.  458, 
461 ;  State  v.  Bruce,  106  N.  Car.  792, 
795.  "  In  most  cases  the  fruits  of 
crime  are  concealed  from  view.  *  *  * 
But  crimes  sometimes  betray  them- 
selves by  their  consequences,  as  by  a 
sudden  and  material  change  in  life  or 
circumstances,  indicating  the  recent 
receipt  of  money.  That  a  poor  person 
immediately  after  a  murder  or  larceny 
is  found  in  possession  of  considerable 
wealth  is  at  least  suspicious."     Bur- 


rell  Circ.  Ev.,  457;  Martin  v.  State, 
104  Ala.  71,  16  So.  Rep.  82,  85. 

4  See  §§  84,  85.  Alexander  v.  State, 
21  Tex.  App.  406;  State  v.  Vin- 
son, 63  N.  Car.  335,  340;  Links  v. 
State,  13  Lea  (Tenn.)  701,  711,  712; 
People  v.  Tucker,  104  Cal.  440,  448; 
State  v.  Goetz,  34  Mo.  85;  McQueen 
v.  State,  108  Ala.  54,  18  So.  Rep.  843. 

5  State  v.  Moore,  101  Mo.  316,  327; 
People  v.  Robles,  34  Cal.  591,  593; 
Com.  v.  Riggs,  14  Gray  (Mass.)  376; 
State  v.  White,  89  N.  Car.  462,466; 
Reed  v.  State,  54  Ark.  621,  16  S.  W. 
Rep.  819;  Bonners  v.  State  (Tex., 
1896),  35  S.  W.  Rep.  650;  People  v. 
Hughes,  91  Hun  354,  36  N.  Y.  Supp. 
493;  Hurley  v.  State  (Tex.,  1896),  35 
S.W.  Rep.  371. 

6  People  v.  Dowling,  84  N.  Y.  478, 
484. 


366  CRIMINAL  EVIDENCE.  §  306 

or  unconvincing.1  The  defendant's  admission  that  at  times 
not  mentioned  in  the  indictment  he  had  stolen  goods  from 
a  building  in  which  were  found  goods  similar  to  those  re- 
ferred to  in  the  indictment,  is  admissible.  But  such  an  ad- 
mission is  only  relevant  to  identify  the  prisoner  and  not  as  a 
confession  of  the  crime  charged.2 

The  crimes  of  larceny  and  embezzlement  are  distinct  and 
dissimilar  offenses.  Evidence  tending  to  support  either  is  not 
usually  relevant  to  sustain  an  allegation  of  the  other.3  But  if 
by  statute  the  crime  of  larceny  is  made  to  include  analogous 
offenses,  as  obtaining  goods  by  false  pretenses  and  embezzle- 
ment, evidence  which  is  only  relevant  to  show  the  latter  of- 
fenses may  be  received,  though  a  conviction  of  larceny  under 
such  circumstances  will  not  be  affirmed,  unless  the  state  shall 
prove  beyond  a  reasonable  doubt  an  act  containing  all  the  ele- 
ments essential  to  obtain  a  conviction  of  the  crime  of  obtaining 
goods  by  false  pretenses.4  Evidence  is  admissible  to  show  the 
contents  of  a  package  of  letters,  under  an  indictment  of  a  post- 
office  clerk  for  the  larceny  of  letters  from  a  package  which  he 
had  no  authority  to  disturb.5 

§  306.    Stolen  goods  found  through  inadmissible  confession. 

— The  rule  that  those  portions  of  an  inadmissible  confession 
which  are  conclusively  corroborated  by  the  facts  discovered  are 
admissible 6  is  particularly  applicable  in  larceny  when  the  ac- 
cused has  attempted  to  conceal  the  stolen  goods.  If  he  con- 
fesses he  stole  the  goods,  and  that  they  are  concealed  in  his 
house  or  elsewhere,  where  they  are  subsequently  found,  it  may 
be  shown  that  the  property  was  found  and  where  it  was  found.7 
The  truthfulness  of  that  part  of  the  confession  being  estab- 
lished, all  that  the  accused  said  explanatory  of  the  hiding  or 
discovery,  of  his  possession,  or  the  locality  of  the  hiding  place, 

xSnapp  v.  Com.,  82  Ky.  173,  177-  5  United  States  v.  Falkenhainer,  21 

183 ;  Boland  v.  People,  19  Hun  (N.  Y.)  Fed.  Rep.  624. 

80;  Endaily  v.  State,  39  Ark.  278,  280.  6  See,  ante,  §  137. 

2  Griffin  v.  State,  86  Ga.  257,  260.  7  Warrickshall's  Case,  1  Leach  C.  C. 

'Fulton  v.  State,  13  Ark.  168.  298. 

4  Fay  v.  Com.,  28  Gratt.  (Va.)  912; 
People  o.  Dumar,  106  N.  Y.  502,  511. 


§307 


EMBEZZLEMENT   AND    LARCENY. 


367 


should  be  received.  But  the  rule  excluding  involuntary  con- 
fessions remains  intact,  and  excludes  that  part  of  the  confes- 
sion stating  directly  that  he  stole  the  goods  or  that  he  hid 
them.1 

§  307.  Malicious  mischief. — This  offense  includes  all  acts  of 
unnecessary  and  malicious  injury  to  the  property  of  others 
which  impair  the  utility  or  diminish  the  value  of  such  prop- 
erty to  a  material  extent.2  It  was  generally  indictable  at  com- 
mon law,3  and  now  statutes  are  found  in  most  states  defining 
the  crime,  regulating  its  punishment  and  sometimes  expressly 
enumerating  what  acts  must  be  proved  to  constitute  it. 

§  308.  Malicious  intent. — Usually  proof  of  the  injury  alone 
is  not  enough,  and  this  is  always  the  case  where  a  statute  re- 
quires that  it  shall  be  proved  to  have  been  wantonly  or 
maliciously  inflicted.  Malice,  it  is  said,  must  be  alleged  and 
proved.  But  malice  need  not  be  express,  nor  need  it  be  proved 
by  direct  evidence.  It  may  be  inferred  to  exist  from  proof 
that  the  injury  was  done  to  the  property  to  secure  revenge  on 
its  owner.4  In  this  connection  the  declarations  of  the  accused 
uttered  at  or  about  the  time  that  he  injured  or  destroyed  the 


1  Davis  v.  State,  8  Tex.  App.  510, 
515 ;  Strait  v.  State,  43  Tex.  486;  Hud- 
son v.  State,  9  Yerg.  (Tenn.)  407; 
White  v.  State,  3  Heisk.  338;  State  v. 
Brick,  2  Harr.  (Del.)  530;  State  v. 
Garvey,  28  La.  An.  925,927;  Laros  v. 
Com.,  84  Pa.  St.  200;  Yates  v.  State, 
47  Ark.  172,  174;  Belote  v.  State,  36 
Miss.  96,  118,  2  East  P.  C.  657,  658; 
Reg.  v.  Gould,  38  Eng.  C.  L.  R.  364,  9 
C.  &  P.  364. 

2  State  v.  Watts,  48  Ark.  56. 

3  People  v.  Smith,  5  Cowen  (N.  Y.) 
25S,  260;  Res.w.  Teischer,  1  Dall.  335; 
Com.  v.  Leach,  1  Mass.  59;  State  v. 
Batchelder,  5  N.  H.  549,  552;  State  v. 
Simpson,  2  Hawks  (N.  Car.)  460,  461. 

4  Thompson  v.  State,  51  Miss.  353, 
35(5;  Smith  v.  State,  8  Ohio  294  ;  Com. 
v.  Walden,  3  Cush.  (Mass.)  558,  561; 


North  Carolina  v.  Vanderford,  35  Fed. 
Rep.  282,  287;  Johnson  v.  State,  61 
Ala.  9,  11 ;  Harris  v.  State,  73  Ga.  41, 
43 ;  Goforth  v.  State,8  Humph.  (Tenn.) 
37,  39;  Lossen  v.  State,  62  Ind.  437, 
440;  Hughes  v.  State,  103  Ind.  344, 
347;  Pippen  v.  State,  77  Ala.  81,  82; 
Duncan  v.  State,  49  Miss.  331,  339; 
Brady  v.  State  (Tex.,  1894),  26  S.  W. 
Rep.  621;  Woodward  v.  State  (Tex., 
1895),  28  S.  W.  Rep.  204;  State  v. 
Flynn,  28  Iowa  26,  27 ;  State  v.  Brig- 
man,  94  N.  Car.  888,  889.  Contra, 
Reg.  v.  Livey,  1  Den.  C.  C.  64;  Terri- 
tory v.  Crozier,  6  Dak.  8,10;  Brown 
v.  State,  26  Ohio  St.  176,  183.  Of. 
Johnson  v.  State,  61  Ala.  9,  11 ;  Fun- 
derburk  v.  State  (Miss.,  1897),  21  So. 
Rep.  658;  Edwards  v.  State  (Ala., 
1897),  22  So.  Rep.  564. 


368  CRIMINAL  EVIDENCE.  §  309 

property  are  very  useful,  and  are  relevant  as  a  part  of  the  res 
gestse  to  illustrate  his  state  of  mind. 

A  malicious  intent  may  be  inferred  from  the  means  em- 
ployed or  the  instrument  used,  or  from  the  wantonness  and 
cruelty  by  which  the  act  of  the  accused  was  accompanied.1 

§  309.  Ownership  and  value  of  property — Evidence  that  the 
accused  acted  in  good  faith. — The  ownership  of  the  property, 
whether  it  be  real  or  personal,  may  be  proved  by  parol,2  but 
must  be  proved  substantially  as  laid,3  though  not  beyond  a 
reasonable  doubt.4  The  accused  may  prove  by  oral  or  written 
evidence  that  he  in  fact  owned  the  property,5  or  that  (believ- 
ing that  he  did)  he  had  taken  legal  advice  and  acted  in  ac- 
cordance therewith.6  All  facts  tending  to  show  that  he  was 
acting  in  good  faith,  or  under  a  misapprehension  of  his  rights 
when  he  injured  or  destroyed  the  property  are  relevant.7  Proof 
of  a  total  destruction  is  not  necessary  to  sustain  an  allegation 
of  maliciously  destroying  or  injuring  property.8  Proof  of  value 
is  necessary  and  relevant  where  the  degree  of  the  crime  or  the 
penalty  depends  on  the  value  of  the  property  destroyed.9 

1  State  v.  Enslow,  10  Iowa  115,  117;  7  Lossen  v.  State,  62  Ind.  437,  442; 
Coin.  v.  Walden,  3  Cush.  (Mass.)  558,  Palmer  v.  State,  45  Ind.  388,  391 ;  Bar- 
561 ;  Hobson  v.  State,  44  Ala.  380,  381 ;  low  v.  State,  120  Ind.  56,  58 ;  Goforth 
State  v.  McDermott,  36  Iowa  107;  v.  State,  8  Humph.  37;  Reg.  v.  Lang- 
Harris  v.  State,  73  Ga.  41,  44;  Shirley  ford,  1  C.  &  M.  602;  Sattler  v.  People, 
v.  State  (Tex.,  1893),  22  S.  W.  Rep.  42.  59  111.  68,  70 ;  State  v.  Flynn,  28  Iowa 

2  State  v.  Brant,  14  Iowa  180,  182;  26,  27;  Com.  v.  Drass,  29  W.  N.  C. 
State  v.  Semotan,  85  Iowa  57,  59.  463,  465,  146  Pa.  St.  55,  60 ;  Reg.  v. 

8  Mayes  v.  State,  33  Tex.  340,  341;  Mathews,  14  Cox  C.  L.  5,  7;  State  v. 

Smith  "v.    State,    43    Tex.    433,    439;  Haney,  32  Kan.  428,  430,  4  Pac.  Rep. 

Hughes  v.  State,  103  Ind.  344,  347.  831.     At  common   law  the  owner  of 

*  State  v.  Sears,  Phill.  (N.  Car.)  146,  the  property  was    not   a  competent 

149.     Proof  that  the  property  was  in  witness  because  of  interest.     Black- 

the  possession  of  or  occupied  by  the  stone  v.  State,  15  Ala.  415,  417 ;  State 

alleged  owner  is  sufficient.     People  v.  v.  Pike,  35  Ala.  419. 

Coyne  (Cal.,  1897),  48  Pac.  Rep.  218;  8 State  v.  McBeth,  49  Kan.  584,  588; 

State  v.  Semotan,  85  Iowa  57,  59,  even  Brown  v.  State,  26  Ohio  St.  176, 183; 

though  he  is  not  the  sole  owner.    Peo-  State  v.  Cole,  90  Ind.  112,  113 ;  State  v. 

pie  v.  Horr,  7  Barb.  (N.Y.)  9, 12.  McKee,  109  Ind.  497,  499 ;   Hannel  ». 

5  State  v.  Zinn,  26  Mo.  App.  17,  18.  State,  4  Ind.  App.  485,  486. 

6People  v.  Kane,  142  N.Y.  366,  369;  9  State  v.  Heath,   41  Tex.  426,  428; 

People  v.  Stevens,  109  N.  Y.  159,  j63.  State  v.  Garner,   8   Port.  (Ala.)  447, 

448;  Com.  v.   Cox,    7   Allen    (Mass.) 


§310 


EMBEZZLKMKNT    AND    LARCENY. 


369 


§  310.  Maliciously  injuring  animals. — Killing,  wounding, 
maiming,  injuring  or  disfiguring  the  animals  of  another  is  a 
very  common  form  of  malicious  mischief.1  An  allegation  of 
injuring  an  animal  which  is  described  under  its  generic  name 
is  sustained  by  proof  of  an  injury  to  any  species  of  the  animal. 
Thus  proof  of  injuring  horses,  pigs,  asses  or  mares,  will  sus- 
tain an  allegation  of  injury  to  cattle.2  And  an  allegation  of 
injuring  any  species  of  animal  is  sustained  by  proof  of  injury 
to  any  one  of  that  species  irrespective  of  its  age,  sex  or  condi- 
tion.3 

The  question  whether  an  indictment  for  maliciously  injur- 
ing personal  property,  or  for  killing  or  maiming  domestic 
animals  can  be  sustained  by  proof  of  maiming,  wounding  or 
killing  a  dog  has  been  variously  decided.4  Evidence  that  the 
injured  animal  was  running  at  large,  or  even  that  it  was  tres- 
passing, is  irrelevant  if  it  appear  from  all  the  evidence  that  the 
injury  was  malicious.5 


577,  578;  Walker  v.  State,  89  Ala.  74, 
75.  If  the  defendant  claims  that  he 
destroyed  the  property  with  the  own- 
er's consent,  the  hurden  is  on  him. 
Ritter  v.  State,  33  Tex.  608,  611. 

1  Davis  v.  Com.,  30  Pa.  St.  421,  424. 

2  Rex  v.  Moyle,  2  East  P.  C.  1076^; 
Rex  v.  Mott,  1  Leach  C.  C  85n;  Rex 
v.  Chappie,  R.  &  R.  C.  C.  77;  State  v. 
Hambleton,  22  Mo.  452;  Rex  v.  Whit- 
ney, 1  M.  C.  C.  3;  Oviatt  v.  State,  19 
Ohio  St.  573;  Snap  v.  People.  19  111. 
80;  State  v.  Grimes,  101  Mo.  188,  190. 

3  Shubrick  v.  State,  2  S.  Car.  21,  22 ; 
Gholston  v.  State,  33  Tex.  342,  343. 
Contra,  where  the  statute  enumerates 
various  species  of  animals  all  belong- 
ing to  one  genus. 

iPro.  Latham's  Case,  13  Ired.  (N. 
Car.  33;  State  v.  Sumner,'  2  Ind.  377; 
State  v.  McDuffie,  34  N.  H.  523 ;  Kins- 
man v.  State,  77  Ind.  132,  135;  State 
v.  Doe,  79  Ind.  9;  State  v.  McKee,  109 
Ind.  497,  499;  Sosat  v.  State,  2  Ind. 
24-Cr.  Ev. 


App.  586,  589;  Nehr  v.  State,  35  Neb. 
638,  642.  Contra,  Com.  v.  Maclin,  3 
Leigh  (Va.)  809;  State  v.  Harriman, 
75  Me.  562;  Patton  v.  State,  93  Ga. 
Ill,  112,  116. 

5  Branch  v.  State,  41  Tex.  622 ;  Wal- 
lace ?;.  State,  30  Tex.  758;  Cryer  v. 
State  (Tex.,  1897),  38  S.  W.  Rep.  203; 
Snap  v.  People,  19  111.  80;  State  v. 
Pierce,  7  Ala.  728;  State  v.  Davis,  2 
Ired.  (N.  Car.)  153;  State  v.  Waters, 
6  Jones  (N.  Car.)  276,  277;  State  v. 
Brigman,  94  N.  Car.  888,  890;  Benni- 
field  v.  State,  62  Ark.  365,  35  S.  W. 
Rep.  790.  Contra,  McMahan  v.  State, 
29  Tex.  App.  348,  349,  16  S.  W.  Rep. 
171,  where  defendant  was  allowed  to 
prove  that  his  field  was  surrounded  by 
a  good  fence.  But  evidence  of  the 
thievish  and  unmanageable  character 
of  the  trespassing  animal  is  relevant, 
not  to  justify  maiming  or  wounding 
it,  but  to  show  that  defendant's  mo- 
tive was  to  protect  his  crop  and  not 


370  CRIMINAL  EVIDENCE.  §  311 

As  a  general  rule,  malice  towards  the  owner  of  the  animal 
must  be  proved.1 

§  311.  Injuries  to  grain,  trees,  crops,  etc. — It  is  often  pro- 
vided by  statute  that  it  shall  be  an  offense  willfully  and  mali- 
ciously to  burn,  cut  down,  destroy  or  injure  any  trees,  grain 
or  growing  crops.2  When  a  statute  points  out  specifically  what 
injurious  acts  are  punishable,  it  is  usually  required  that  the 
acts  proved  shall  substantially  conform  thereto.3  If  a  man  cut 
down  a  tree  in  a  boundary  line,  with  intent  to  destroy  the 
marks,  no  express  malice  need  be  shown  under  a  statute  mak- 
ing such  an  act  a  crime.  If  the  immediate  consequence  of 
cutting  down  the  tree  is  to  destroy  certain  marks  upon  it,  the 
presumption  will  arise  that  he  intended  to  destroy  those  marks. 
The  particular  intent  must  be  left  to  the  jury.  If  the  act  of 
destruction  is  criminal  only  when  done  with  a  particular  in- 
tent, the  presence  of  the  intent  must  be  proved.4  Where  the 
statute  makes  it  a  crime  to  cut  or  injure  trees  without  the  con- 
sent of  the  owner  the  intent  is  not  material,  and  the  accused 
can  not  show  his  motives  for  his  actions.5 

spite  toward  the  owner.    Sosatu.  State,  liciously  poisoning  the  horses  of  an- 

2  Ind.  App.  586,  592;  Wright  v.  State,  other,  the  prosecution  was  allowed  to 

30  Ga.  325,  327;  Farmer  v.  State,  21  prove  that  the  defendant  had  bought 

Tex.  App.  423,  2  S.W.  Rep.  767  ;  Ben-  poison,  saying  it  was  to  kill  rats,  that 

nifield  v.  State,  62  Ark.  36,  35  S.  W.  he  had  never  used  it  for  that  purpose, 

Rep.  790.  but  that  he  had  every  opportunity  to 

1  State  v.Wilcox,  3  Yerg.  278,279;  administer    it    to  the   horses,    and  a 

Hampton  v.   State,  10  Lea  639,  641;  motive  to  do  so.    Croyu.  State,  32  Ind. 

Hobson  v.  State,  44  Ala.  380,  381 ;  State  384,  385.     An  allegation  of  poisoning 

v.  Latham,  13  Ired.  (N.  Car.)  33,  35;  animals  by  one  means  is  sustained  by 

State  v.    Hill,  43   Ala.   335;    Shirley  proof  of  a  means  substantially  simi- 

v.  State  (Tex.,  1893),  22  S.  W.  Rep.  42;  lar.     Com.  v.  McLaughlin,  105  Mass. 

Shepherd's  Case,  2  Leach  C.  C.  609,  460,  463. 

610.     Contra,  Brown  v.  State,  26  Ohio  2  Daily  v.   State,  51   Ohio   St.   348; 

St.  176,   183;   State  v.  Phipps  (Iowa,  People  v.  Horr,  7  Barb.  (N.  Y.)  9,  12; 

1896),  64  N.  W.  Rep.  411.     Evidence  Parris  v.  State,  76  111.  274,  277. 

that   animals   found   and   ate   poison  3  State  v.  Allisbach,  69  Ind.  50,  54. 

where  it  was  exposed  with  an  intent  Cf.  State  v.  Jones,  33  Vt.  443,  447. 

that  they  should*  find  and  eat  it  will  4  State  v.  Malloy,  34  N.  J.  L.  410, 

sustain  a  charge  of  causing  them  to  417. 

eat  it.   Com.  v.  Falvey,  108  Mass.  304,  5Mettler  v.  People,  36  111.  App.  324. 
307.   Where  one  was  indicted  for  ma- 


CHAPTER  XXIV. 


HOMICIDE. 


§  312.  Facta  forming  the  corpus  delicti 
— Evidence  to  prove  the 
cause  and  manner  of  death. 

313.  The  result  of  the  autopsy  as 

evidence. 

314.  Variance  in  proof  of  means  or 

weapon  producing  death. 

315.  Weapons  as  evidence. 

316.  Identity  of  the  deceased. 

317.  The  identification  of  the  body 

of  the  deceased. 

318.  Expert  testimony  and  the  em- 

ployment of  a  chemical  an- 
alysis in  cases  of  homicide 
by  poisoning. 

319.  Relevancy  of  evidence  to  show 

poisoning. 

320.  Presumption  and  proof  of  mal- 

ice. 

321.  Connected  crimes. 

322.  Conduct  of  the  accused  subse- 

quent to  the  crime. 

323.  Evidence     showing     possible 

motive. 

324.  Competency  of  evidence  show- 

ing the  habits,  character  and 
disposition  of  the  deceased. 


§  325.  Nature  of  the  proof  required 
to  show  the  character  of  the 
deceased. 

326.  Evidence  of  threats  by  the  de- 

ceased. 

327.  Evidence  to  prove  the  peacea- 

ble character  of  the  accused. 

328.  Threats  by  the  accused— Gen- 

eral nature  of  the  threats. 

329.  Form,  character  and  mode  of 

proving  the  threats. 

330.  Declarations  forming  a  part  of 

the  res  gestae, 

331.  Declarations  of  third  persons 

and  cries  and  exclamations 
of  bystanders. 

332.  Threats  against    deceased  by 

third  persons. 

333.  Animosity    between    the    de- 

ceased and  the  accused. 

334.  Expert    and    non-expert  evi- 

dence as  regards  blood  stains. 

335.  Conspiracy  to   commit  homi- 

cide. 

336.  Preparations  to  commit  homi- 

cide. 

337.  Footprints. 

.338.   Self-defense — Burden  of  proof. 
338a.  The  alibi  of  the  alleged  victim. 


§  312.  Facts  forming  the  corpus  delicti — Evidence  to  prove 
the  cause  and  manner  of  death. — In  homicide  the  necessary 
constituents  of  the  corpus  delicti,  the  death  of  a  human  being 
and  the  criminal  agency  producing  it,  must  be  shown.  Any 
evidence  referring  to  either  of  these  facts  and  tending  to  estab- 
lish or  to  disprove  them  is  relevant.    The  physical  condition  of 

(371) 


372 


CRIMINAL    EVIDENCE. 


§312 


the  deceased  prior  to,  or  at  the  instant  of,  his  death  may  be 
shown,1  and  the  state  may  prove  his  declarations  made  to  a 
physician  or  to  a  non-professional  person  concerning  his  phys- 
ical health,2  or  respecting  his  physical  peculiarities,  as,  for  ex- 
ample, that  he  had  a  peculiar  tooth  in  his  mouth.3  It  may  he 
shown  by  the  testimony  of  a  physician  that  a  wound  discovered 
upon  a  dead  body  was  inflicted  before  or  after  death.4  Any 
witness  familiar  by  experience  with  the  appearance  or  treat- 
ment of  wounds,5  particularly  a  physician  or  surgeon,  may  give 
an  opinion  as  to  the  manner  in  which  a  mortal  wound  was 
probably  inflicted,6  as  to  the  degree  of  force  employed,7  and  as 
to  direction  of  a  blow.8  If  he  states  that  death  was  caused  by 
a  certain  weapon  or  instrument,  he  may  be  shown  an  instru- 
ment, properly  identified,  as  having  been  in  the  possession  of 
the  accused,  and  may  be  asked  if  that  would  have  caused  the 


1  Williams  v.  State,  64  Md.  384,  389 ; 
State  v.  Baldwin,  36  Kan.  1,  12  Pac. 
Rep.  312.  It  is  unnecessary  but  harm- 
less to  the  accused  to  prove  that  de- 
ceased was  a  human  being.  Epps  v. 
State,  102  Ind.  539,  549. 

2  State  v.  Moxley,  102  Mo.  374,  385 ; 
State  v.  Fournier,  68  Vt.  262,  35  Atl. 
Rep.  178. 

3  Edmonds  v.  State,  34  Ark.  720, 737. 

4  State  v.  Clark,  15  S.  Car.  403,  408; 
State  v.  Harris,  63  N.  Car.  1,  3. 

5  Lemons  v.  State,  97  Tenn.  560,  37 
S.  W.  Rep.  552;  People  v.  Gibson, 
infra;  Rash  v.  State,  61  Ala.  89,93; 
Wise  v.  State  (Ga.,  1897),  25  S.  E.  Rep. 
846.  Evidence  of  the  locality  and 
description  of  wounds  on  the  body 
of  deceased  is  always  relevant.  Basye 
v.  State,  45  Neb.  261,  286,  63  N.  W. 
Rep.  811;  People  v.  Gibson,  106  Cal. 
458,  39  Pac.  Rep.  864,  870. 

6  People  v.  Fish,  125  N.  Y.  136,  147; 
State  v.  Ginger,  80  Iowa  574,  577; 
State  v.  Asbell,  57  Kan.  398,  46  Pac. 
Rep.  770;  State  v.  Baldwin,  36  Kan.  1, 
19;  Newton  v.  State,  21  Fla.  53,  102; 
Boyle  v.  State,  61  Wis.  440,  448;  Cart- 


haus  v.  State,  78  Wis.  560,  564 ;  People 
v.  Rector,  19  Wend.  569,  577;  State  v. 
Seymore  (Iowa,  1895),  63  N.  W.  Rep. 
661;  Doolittle  v.  State,  93  Ind.  272, 
275;  1  Greenl.,  §440. 

'People  v.  Fish,  125  N.  Y.  136,  147. 
Where  the  medical  evidence  showed 
that  the  wounds  on  the  deceased  were 
caused  by  a  powerful  blow,  it  may  be 
shown  that  defendant  is  a  strong  and 
powerful  man.  Thiede  v.  Utah  Ter- 
ritory, 159  U.  S.  510,  16  S.  Ct.  62. 

8 Territory  v.  Egan,  3  Dak.  119,  127 
Com.  v.  Sturtivant,  117  Mass.  122, 123 
Kennedy  v.  People,  39  N.  Y.  245,  256 
Simon  v.  State,  108  Ala.  27,  18  So. 
Rep.  731.  The  question  may  be,  "What 
was  the  cause  of  a  wound,"  describing 
it,  as,  "  What  would  be  the  effect  of  a 
blow  inflicted  by  a  weapon  specified." 
Williams  v.  State,  64  Md.  384,  392. 
The  court,  in  Hopt  v.  Utah,  120  U.  S. 
430,  438:  "Upon  the  same  principle, 
the  testimony  of  the  physician  as  to 
the  direction  from  which  the  blow  was 
delivered  was  admissible.  It  was  not 
expert  testimony  in  the  strict  sense  of 
the  term,  but  statement  of  a  conclu- 


§  312 


HOMICIDE. 


373 


wound.1  A  non-expert  witness2  may  describe  the  wounds  lie 
saw  on  the  body,3  and  a  fortiori  a  surgeon  may  give  an  opinion 
as  to  the  probable  cause  of  death,4  and  may  state  when,  in  his 
opinion,  death  occurred,5  and  that  it  was  not  suicidal.6  But 
the  question  whether  a  wound  was  accidentally  self-inflicted  is 
for  the  jury.7  But  expert  evidence  is  not  admissible  to  show 
the  probable  position  of  the  deceased  when  the  fatal  blow  was 
struck,9  or  whether  he  would,  after  receiving  it,  have  sufficient 
strength  to  inflict  a  blow  with  an  effect  specified,9  as  these  are 
questions  which  the  jury  can  determine  as  well  as  any  expert. 
The  fact  that  the  deceased  died  suddenly  never  warrants  an 
inference  that  he  was  foully  dealt  with.  It  is  for  the  state  to 
prove  that  his  death  was  the  result  of  a  criminal  act,  and,  un- 
less or  until  this  is  proved,  it  is  presumed  that  death  resulted 
from  natural  causes.10  The  accused  may  show  the  deceased  was 
of  a  melancholy  temperament  or  inclined  to  suicide,11  wThile  the 


sion  of  fact,  such  as  men  who  use  tbeir 
sense  constantly  draw  from  what  they 
see  and  hear  in  the  daily  concerns  of 
life." 

1  People  v.  Carpenter,  102  N.  Y.  238, 
248.  Photographs  are  admissible  for 
the  purpose  of  identifying  the  de- 
ceased, State  v.Windahl  (Iowa,  1896), 
64  N.  W.  Rep.  420,  and  showing  the 
wounds  on  his  body.  Malachi  v.  State, 
89  Ala.  134,  139;  People  v.  Fish,  125 
N.  Y.  136,  147;  Wilson  v.  United 
States,  162  U.  S.  613,  16  S.  Ct.  895. 

2  Smith  v.  State,  43  Tex.  643,  647- 
649;  Everett  v.  State,  62  Ga.  65,  71. 

3  Batten  v.  State,  80  Ind.  394,  399. 

4  Boyle  v.  State,  61  Wis.  440,  448; 
Com.  v.  Thompson,  159  Mass.  56,  33 
N.  E.  Rep.  1111 ;  State  v.  Chiles,  44  S. 
Car.  338,  22  S.  E.  Rep.  339;  People  v. 
Barker,  60  Mich.  277,292,293;  People 
v.  Sessions,  58  Mich.  594,  600. 

5  State  v.  Clark,  15  S.  Car.  403. 

6  Everett  v.  State,  62  Ga.  65. 

7  State  v.  Bradley,  34  S.  Car.  136,  13 
S.  E.  Rep.  315.  A  non-expert  witness 
may   testify    as    matter    of    common 


knowledge  that  a  pistol  must  be  held 
very  close  to  clothing,  when  fired,  to 
scorch  it.  Miller  v.  State,  110  Ala.  674, 
19  So.  Rep.  37;  State  ».  Cater  (Iowa, 
1897),  69  N.  W.  Rep.  880. 

8  Brown  v.  State,  55  Ark.  593;  Ken- 
nedy v.  People,  39  N.Y.  245,  256,  257; 
Watkins  v.  State,  89  Ala.  82,88 ;  People 
v.  Hill  (Cal.,  1897),  48  Pac.  Rep.  711. 
Contra,  State  v.  Sullivan,  43  S.  Car. 
205,  208,  21  S.  E.  Rep.  4. 

9  People  v.  Rector,  19  Wend.  (N.Y.) 
569,  577. 

10  State  v.  Moxley,  102  Mo.  374,  391. 
A  physician  may  testify  which  of  two 
wounds,  both  certainly  fatal,  caused 
death.  Eggler  r.People,56  N.Y.642,643. 

11  Boyd  v.  State,  14  Lea  (Tenn.)  161, 
175-177;  Blackburn  v.  State,  23  Ohio 
St.  146,  165.  Cf.  Hall  v.  State,  132 
Ind.  317,  325.  Such  evidence  is  of 
peculiar  relevancy  in  case  of  death  by 
poisoning.  Hall  v.  State,  132  Ind. 
317,  325.  Threats  by  deceased  to  com- 
mit suicide,  unaccompanied  by  any 
attempt  to  carry  them  into  execution, 
are  inadmissible,  as  they  are  merely 


374  CRIMINAL  EVIDENCE.  §  313 

state  may  prove  the  cheerful  disposition  and  good  health,  the 
social  condition  and  favorable  prospects  and  the  pleasant  per- 
sonal surroundings  of  the  deceased,  to  show  the  absence  of  a 
suicidal  intent.1 

§  313.  The  result  of  the  autopsy  as  evidence. — The  testi- 
mony of  a  competent  surgeon  or  medical  practitioner,  who  con- 
ducted the  autopsy,  is  admissible,  though  some  minor  statutory 
details  were  not  observed,2  and  though  the  accused  was  not 
notified  to  be  present,  or,  being  present,  was  without  counsel. 
The  physician  may  describe  what  tests  are  necessary  to  ascer- 
tain the  cause  of  death,  and,  after  relating  the  facts  revealed 
by  the  autopsy,  may  give  his  opinion,  based  thereon,  as  to  the 
cause  and  mode  of  death.3 

The  mere  fact  that  the  autopsy  was  made  some  time  after  the 
death  will  not  exclude  its  results  as  evidence  unless  the  delay 
was  great,  and  the  condition  of  the  body  at  the  autopsy  was 
such  that  it  was  impossible  to  determine  whether  its  condition 
was  attributable  to  ante-mortem  or  post-mortem  causes.4  One  of 
several  physicians  who  conducted  an  autopsy  may  prove  what 
was  done  by  the  others,  and  what  appeared  as  the  result  of  a 
manual  investigation  by  another.5  An  expert  who  has  heard 
the  autopsy  described  may  be  asked  if,  in  his  opinion,  it  was 
properly  conducted,6  and  he  may  be  also  asked  whether  it  is 
possible  for  a  physician  to  determine,  on  the  facts  which  were 
observed,  the  exact  point  of  time  a  poison  which  was  discov- 
ered began  to  operate.7  A  physician  may,  though  a  person 
who  is  not  familiar  with  anatomy  can  not,  give  an  opinion  of 
a  person's  sex,  based  upon  his  examination  of  a  skeleton.8 

hearsay.     State  v.  Fitzgerald,  130  Mo.  4  "Williams  v.  State,  64  Md.  384,  391. 

407,  32  S.  W.  Rep.  1113 ;  State  v.  Pun-  5  People  v.  Wilson,  109  N.  Y.  345, 

shon,  133  Mo.  44,  34  S.  W.  Rep.  25;  354. 

State  v.  Fournier,  68  Vt.  262,  35  Atl.  6  State  v.  Moxley,  102  Mo.  374,  380, 

Rep.  178.  14  S.  W.  Rep.  969,  15  S.  W.  Rep.  556. 

1  State  v.  Lentz,  45  Minn.  177,  180.  7  Hartung  v.  People,  4  Park  Cr.  Rep. 

2  Com.  v.  Taylor,  132  Mass.  261,  263.  319,  325,  327. 

3  State  v.  Merriman,  34  S.  Car.  16,  8  Wilson  v.  State,  41  Tex.  320,  323- 
12  S.  E.  Rep.  619,  626.  325  , 


§   314  HOMICIDE.  375 

§  314.  Variance  in  proof  of  means  or  weapon  producing 
death. — The  substance  of  homicide  being  the  felonious  killing, 
proof  of  a  killing,  in  any  manner  or  by  any  means,  that  corre- 
spond substantially  with  the  indictment,  is  sufficient.  All  the 
details  of  the  offense  need  not  be  proved  precisely  as  alleged. 
Proof  of  a  shooting  with  a  pistol  will  sustain  an  averment  of 
shooting  with  a  gun  and  vice  versa,1  and  proof  of  killing  with 
a  dagger  or  bowie-knife  will  sustain  an  averment  of  death  from 
stabbing  with  a  dirk,  sword,  or  similar  weapon.2  But  proof  of 
a  knife  will  not  sustain  an  allegation  of  killing  by  shooting 
and,  as  a  rule,  where  the  killing  is  alleged  to  have  been  with  a 
particular  weapon,  proof  of  a  totalhy  diverse  weapon  is  a  fatal 
variance.3  Proof  of  strangling  with  a  scarf  is  sufficient  where 
strangling  with  the  hands  was  alleged.4  Allegations  of  the 
place  or  nature  of  wounds  are  generally  immaterial.5 

Evidence  that  a  weapon,  similar  to  that  with  which  the  de- 
ceased was  slain,  was  seen  near  the  defendant's  house  shortly 
before  the  homicide  and  subsequently  disappeared,6  or  that  de- 
fendant borrowed,7  purchased,  stole,8  had  in  his  possession,9 
or  practiced  using10  a  similar  weapon,  is  always  receivable  as 
relevant  to  show  preparation  to  commit  a  homicide. 

Evidence  of  the  finding  of  weapons,  known  to  belong  to  the 
defendant,  near  where  the  dead  body  was  found,11  or  the  testi- 

■Com.  v.  Webster,  5  Cush.  295,  321,  6  State  v.  Brabham,  108  N.  Car.  793, 

322;  Rodgers   v.  State,   50   Ala.    102,  794,  13  S.  E.  Rep.  217. 

104;  States.  Lautenschlager,  22  Minn.  7 Finch  v.  State,  81  Ala.  41,  49. 

514,  522;  Turner  v.  State,  97  Ala.  57,  "People  v.  Rogers,  71  Cal.  565,  567, 

58,  12  So.  Rep.  54;  States  Smith,  32  568. 

Me.  369,  373.  9 Nicholas  v.  Com.,  91  Va.  741,  21  S. 

2  Hernandez  v.  State,    32  Tex.  Cr.  E.  Rep.  364;  Walsh  v.  State,  88  N.  Y. 
Rep.  271,  22  S.  W.  Rep.  972.  458,  466. 

3  Witt  v.  State,  6  Cold.  (Tenn.)  5,  8;  10  Boiling  v.  State,  54  Ark.  588,  596, 
Reg.  v.  Warman,  2  C.  &  K.  195.  16  S.  W.  Rep.   658;   Burton   v.  State 

4Thomas  v.   Com.    (Ky.,    1893),  20  (Ala.,  1896),  18  So.  Rep.  284. 

S.  W.  Rep.  226;  Rex  v.  Waters,  7  C.  "  State  v.  Craemer,  12  Wash.  217,  40 

&  P.  250.  Pac.  Rep.  944.     Cf.  Thornton  v.  State 

5  Com.  v.  Coy,  157  Mass.  200,  214,  32  (Ala.,  1897),  21   So.   Rep.  356,  where 

N.  E.  Rep.  4;  State  v.  Waller,  88  Mo.  a  memorandum  book  and  pencil  found 

402,  404 ;  Nelson  v.  State,  1  Tex.  App.  at  the  locus  in  quo  and  shown  to  have 

41.  belonged  to  the  defendant  was  admit- 
ted in  evidence  against  him. 


376 


CRIMINAL    EVIDENCE. 


§315 


mony  of  a  witness  who  is  familiar  with  fire-arms,  that  a  gun 
or  pistol  belonging  to  the  defendant  had1  or  had  not2  been  re- 
cently used,  is  admissible.3 

§  315.  Weapons  as  evidence. — The  state  may  introduce  in 
evidence  the  weapon  with  which  it  is  charged  the  homicide 
was  committed4  if  properly  identified  as  belonging  to  the  de- 
fendant,5 or  any  weapon  found  in  the  possession  of  the  accused 
or  his  criminal  associates,  which  is  similar  in  form  and  char- 
acter to  that  which  was  employed.6  It  is  improper  to  allow 
experiments  with  weapons  in  the  presence  of  the  jury,7  nor 
is  expert  evidence  admissible  to  show  that  a  cartridge  is 
marked  in  such  a  way  as  to  indicate  it  had  been  fired  from  a 
pistol  belonging  to  the  deceased.8 

§  316.  Identity  of  the  deceased. — The  identity  of  the  de- 
ceased with  the  party  named  in  the  indictment  must  be  proved 


1  Meyers  v.  State,  14  Tex.  App.  35, 
39,  48. 

2  People  v.  Driscoll,  107  N.  Y.  414, 
420.  Where  the  defendant,  when 
arrested,  had  in  his  possession  a  re- 
volver containing  four  empty  shells, 
it  is  proper  to  prove  the  caliber  of  the 
weapon,  that  a  witness  heard  four  re- 
ports of  fire  arms  in  the  direction  of 
the  house  where  the  killing  occurred, 
that,  on  going  there,  bullet  holes  were 
found  in  the  ceiling  of  the  room  and 
the  description  of  the  holes.  State  v. 
Fitzgerald,  32  S.  W.  Rep.  1113,  130 
Mo.  407. 

3  If  it  is  proved  that  the  defendant 
carried  a  concealed  weapon  similar  to 
that  with  which  the  homicide  was 
committed,  he  can  not  show  that  it  is 
a  custom,  where  he  resides,  to  carry 
such  weapons,  though  he  may  prove 
his  habit  and  motive  in  going  armed. 
Creswell  v.  State,  14  Tex.  App.  1,  18. 

4  Siberry  v.  State,  133  Ind.  677,  685; 
Thomas  v.  State,  67  Ga.  460,  465; 
Crawford  v.  State  (Ala.,  1897),  21  So. 
Rep.   214;  McBrayer  v.  State  (Tex., 


1896),  34  S.  W.  Rep.  114;  State  v. 
Cushing,  14  Wash.  527,  45  Pac.  Rep. 
145;  Burton  v.  State  (Ala.,  1896),  18 
So.  Rep.  284.  See  §  48.  A  broken 
gun  found  near  the  locality  of  the 
crime,  and  apparently  the  instrument 
of  death,  is  admissible,  though  it  was 
again  broken  after  its  discovery. 
Ezell  v.  State,  103  Ala.  8,  15  So.  Rep. 
818,  819. 

5  State  v.  Tippet,  63  N.  W.  Rep.  445, 
447. 

6  Rodriquez  v.  State,  32  Tex.  C.  Rep. 
259,  22  S.  W.  Rep.  978.  A  witness 
may  state  the  result  of  a  comparison 
of  shot  taken  from  defendant's  gun 
with  other  shot  found  in  the  body  of 
deceased.  Granger  v.  State  (Tex., 
1895),  31  S.  W.  Rep.  671;  Lemons  v. 
State,  97  Tenn.  560,  37  S.  W.  Rep. 
552 ;  Dean  v.  Com.,  32  Gratt.  (Va.)  912 
922. 

7  Ball  v.  United  States,  163  U.  S.  662, 
16  S.  Ct.  1192 ;  Polin  v.  State,  14  Neb. 
540,  545. 

8  People  v.  Mitchell,  94  Cal.  550,  555. 


§  317  HOMICIDE.  377 

beyond  a  reasonable  doubt.  The  name  must  be  proved  as 
alleged.  Failure  to  prove  the  christian  name  of  the  deceased 
is  fatal,1  though  this  variance  may  be  cured  if  the  occupation 
and  surname  are  proved  as  alleged.2  And  when  the  name  as 
proved  is  idem  sonans ,  with  respect  to  that  alleged,  slight  diver- 
gencies in  spelling  will  be  disregarded.3 

§  317.    The  identification  of  the  body  of  the  deceased. — The 

structure  and  condition  of  the  teeth  of  a  deceased  person,  by 
reason  of  the  imperishable  nature  of  the  materials  which  com- 
pose them,  furnish  an  excellent  means  of  identification.  Any 
witness  who  was  acquainted  with  the  appearance  and  con- 
formation of  the  teeth  of  the  person  in  question  may  describe 
their  condition  of  soundness  or  decay,  and  point  out  what- 
ever he  may  have  observed  which  was  abnormal  or  peculiar 
in  them,  as,  for  example,  fillings,  etc.  This  evidence  may 
then  be  followed  up  by  the  testimony  of  experts,  preferably 
dentists  or  dental  surgeons,  who  have  made  an  examination  of 
the  teeth  after  death.  The  jury  may  then  determine  as  an 
inference  from  the  points  of  similarity,  if  any,  the  identity  of 
the  remains  with  the  person  whose  death  is  under  considera- 
tion.4 

§  318.  Expert  testimony  and  the  employment  of  a  chemical 
analysis  in  cases  of  homicide  by  poisoning. — A  conviction  of 
homicide  by  poisoning  will  stand  though  every  fact,  except, 
perhaps,  the  death  of  the  party,  which  must  be  proved  by 
direct  evidence,  is  sustained  by  circumstantial  evidence  alone.5 
A  chemical  analysis,  an  autopsy  and  the  aid  of  expert  testi- 
mony, though  very  desirable,  are  never  indispensable.6 

1  Pen  rod  v.  People,  89  111.  150,  151.  Rehfuss  on  DentalJurisprudence,  §9, 

8  Shepherd  r.  People,  72111.  480,  481;  pp.  17-32.     See   also  Com.  v.  Udder- 
State  v.  Lincoln,  17  Wis.  597, 599,  601.  zook,  76  Pa.  St.  340;  Rex  v.  Clewes,  4 

"Girous  v.  State,  29  Ind.  93,  94;  C.  &  P.  221 ;  Com.  v.  Webster,  5  Cush. 

State  v.  Witt,  34  Kan.  4S8,  494;   State  295,  and  ante,  §7. 

v.   Lincoln,    17  Wis.   597  ,  599.     The  5  Zoldoske  v.  State,  82  Wis.  580,  597. 

fact  that  the  deceased   was  a   white  6  Johnson  v.  State,  29  Tex.  App.  150, 

man  may  be  proved  by  the  confession  153,  15  S.  W.  Rep.  647 ;  Polk  v.  State, 

of   the    accused.     Isaacs    v.    United  36  Ark.  117,  126;  State  v.  Slagle,  83  N. 

States,  159  U.  S.  487,  16  S.  Ct.  51.  Car.  630,  631. 

4  The  subject  is  fully  discussed   in 


378  CRIMINAL  EVIDENCE.  §  318 

A  physician  can  not  testify  as  an  expert  on  symptoms  of 
poisoning  who  has  never  treated  or  seen  a  case  of  poisoning  in 
his  practice,  and  whose  knowledge  is  only  such  as  he  has 
obtained  by  reading  books  and  from  his  instruction  at  the 
medical  school.1  A  properly  qualified  medical  witness  may 
state  that,  in  his  opinion,  death  was  caused  by  a  certain  poison,2 
or  may  describe  symptoms  which  accompany  poisoning,3  or 
may  state  that  symptoms  described  in  a  hypothetical  question 
indicate  the  presence  of  arsenic.4  He  can  not,  perhaps,  state 
the  result  of  a  chemical  analysis  unless  he  has  had  some  special 
experience  in  chemical  research  and  a  knowledge  of  the  science.5 

The  competency  of  the  chemical  expert  is  always  a  judicial 
question,  though  his  knowledge  and  experience  may  be  brought 
out  to  enable  the  jury  to  give  proper  weight  to  his  evidence.6 
It  is  now  very  customary  in  criminal  trials  to  employ  trained 
analysts,  or  experienced  physicians  who  have  made  a  specialty 
of  the  study  of  organic  chemistry,  to  conduct  the  analysis  of 
the  contents  of  the  viscera  where  poisoning  is  suspected,7  and 
obviously  the  opinions  of  such  persons  would  have  greater 
weight  with  the  jury  than  those  of  ordinary  physicians.8  The 
identity  of  the  subject  analyzed  with  that  involved  in  the  case, 
and  the  fact  that  it  has  not  been  improperly  tampered  with, 
must  be  shown,9  though   the  evidence  of  identity  need  not  be 

Coquet  v.  State,  72  Wis.  659,  662-  Ind.  539,  548;  Hartung  v.  People,  4 

665.  Contra,  People  w.Thacker  (Mich.,  Park.  Cr.  Cases  319. 

1896),  66  N.  W.  Rep.  562.  6  The  fact  that  the  opinion  of  an  ex- 

2  Mitchells.  State,  58  Ala.  417,419.  pert    chemist    given  on  the  witness 

3  People  v.  Robinson,  2  Park.  Cr.  stand  is  based  partly  on  his  reading 
Rep.  235,243,  245;  Polk  v.  State,  36  is  immaterial.  State  v.  Baldwin,  36 
Ark.    117,    124;    State  v.   Terrell,    12  Kan.  1,  17. 

Rich.  (S.  Car.)  321.  7People v.  Buchanan,  145N.Y.  1, 11- 

4  Stephens  v.  People,  4  Park.Cr.  Cas.  14 ;  State  v.  Bowman,  78  N.  Car.  509, 
396,  432-438.  511,  514;    State  v.  Cook,  17  Kan.  392, 

5  Soquet  v.  State,  72  Wis.  659,  40  N.  394;  Joe  v.  State,  6  Fla.  591,  601-606. 
W.  Rep.  391  ;  States.  Cook,  17  Kan.  8 State  v.  Hinkle,  6  Iowa  380,  386. 
392,  395.  But  he  need  not  be  a  prac-  Cf.  Sanders  v.  State,  94  Ind.  147,  149. 
tical  analyst  or  chemist.  Zoldoskev.  9  State  v.  Cook,  17  Kan.  392,  394. 
State,  82  Wis.  580,597 ;  States.  Hinkle,  The  fact  that  the  jars  containing  the 
6  Iowa  380,  386 ;  Epps  v.  State,  102  organs  of  the  deceased  were  not  her- 


§  319  HOMICIDE.  379 

absolutely  convincing  before  it  should  be  permitted  to  go  to 
the  jury.1  A  hypothetical  question  containing  facts  proved  or 
claimed  to  be  proved  in  connection  with  the  poisoning  may  be 
asked,  and  it  is  not  material  that  the  question  does  not  contain 
all  the  facts  if  those  omitted  are  brought  out  on  the  cross- 
examination.2  The  fact  that  the  expert  heard  that  there  was 
poison  in  the  house,  which  fact,  being  viewed  by  him  in  con- 
junction with  the  symptoms,  influenced  him  in  forming  an 
opinion  that  the  deceased  was  poisoned,  will  not  exclude  his 
opinion.3 

§  319.  Relevancy  of  evidence  to  show  poisoning. — Malice 
may  be  reasonably  presumed  from  the  willful  administration 
of  poison  in  a  quantity  sufficient  to  cause  death  under  ordinary 
circumstances.4  Evidence  that  a  member  of  a  family  with 
whom  the  defendant  had  lived  had  died  from  the  same  poison 
which  he  is  now  accused  of  having  administered  is  relevant  to 
aid  the  jury  in  determining  the  probability  that  the  death  of 
the  person  with  whose  murder  he  is  charged  was  accidental.5  The 
possession  of  poison  by  the  accused  is  an  important  fact  and 
may  always  be  proved.  But  evidence  that  the  accused  mixed 
poison  or  had  poison  in  his  possession  is  of  little  weight  unless  it 
is  also  shown  that  he  had  an  opportunity  to  administer  it.5  The 
evidence  to  show  possession  need  not  be  direct,  nor  need  the 
possession  be  exclusive.  If  it  is  shown  that  poison  was  in  a 
house  where  the  accused  lived,  within  easy  reach,  and  that  he 
had  knowledge  of  the  fact,  a  conviction  will  be  sustained.7 


metically  sealed,  State  v.  Thompson  'Mitchell  v.  State,  58  Ala.  417,  420. 

132  Mo.  301,  34  S.  W.  Rep.  31,  and  4  People  v.  Sanchez,  24  Cal.  17. 

were  not  kept  under  look  and  key,  5Zoldoske  v.  State,  82  Wis.  580,  597, 

does  not  exclude  the  analysis.     State  52  N.  W.  Rep.  778.     See  ante,  §  89. 

v.  Cook.  17  Kan.  392,  394.  6  Madden  v.  State,  1  Kan.  340. 

People  v.   Williams,   3  Park.   Cr.  7Zoldoskev.  State,  82  Wis.  580,  597. 

Cas.  (N.  Y.)  84,  94-96.  The   court   may,    with  propriety,  en- 

2  Goodwin  v.  State,  96  Ind.  550,  554-  lighten  the  jury  in  its  charge  by  defin- 

556;  Epps  v.  State,  102  Ind.  539,  554;  ing     such    words    as    "  anaesthetic," 

Zoldoske  v.  State,  82  Wis.  580,  597,  52  "chloroform"  and  "  poison."  State  v. 

N.  W.  Rep.  778;  Conway  v.  State,  118  Baldwin,  36  Kan.  1,  22. 
Ind.  482,  490. 


380  CRIMINAL  EVIDENCE.  §  320 

§  320.  Presumption  and  proof  of  malice. — The  character  of 
homicide,  whether  murder  or  manslaughter,  and  the  validity 
and  cogency  of  a  defense  involving  justification  or  excuse  for 
the  act  of  killing,  which  itself  is  not  denied,  depends  wholly 
upon  the  presence  or  absence  of  a  malicious  intent.  To  consti- 
tute the  killing  murder,  malice  existing  at  the  instant  of  the 
killing,  or,  at  least,  at  some  time  not  too  remote,  must  be 
shown,  or  circumstances  must  be  shown  from  which  it  may  be 
presumed.1 

"Malice  aforethought,"  or  that  degree  of  malice  which 
makes  a  homicide  murder,  need  not  be  shown  by  direct  evi- 
dence. Malice  is  the  outcome  of  a  mental  condition,  and 
direct  proof  of  a  mental  condition  is  usually  impossible  from 
the  customary  secrecy  of  motive  leading  to  the  crime. 

If  an  unlawful  homicide  is  proved  to  have  been  committed 
and  is  shown  to  have  been  the  intentional  and  deliberate  act 
of  the  accused,  the  law  will  presume  malice  and  the  intention 
to  kill  until  he  shall  offer  evidence  to  show  mitigating,  excus- 
ing or  justifying  circumstances.2  The  legal  presumption  of 
malice  aforethought  arises  from  the  deliberate  use  of  a  deadly 
weapon  in  a  way  which  is  likely  to  produce,  and  which  does 
produce,  death. 

The  use  of  such  a  weapon  is  a  fact  which,  when  proved,  if 
no  other  evidence  is  offered  on  either  side  to  show  the  contrary, 
raises  a  presumption  of  law  that  a  deliberately  formed  design 
existed  in  the  mind  of  the  accused  to  kill  the  person  on  whom 
that  weapon  was  used.  Usually  modifying  facts  are  proved  in  con- 
nection with  the  killing.  These  facts  may  be  of  such  a  char- 
acter that  no  necessity  may  exist  for  drawing  a  presumption 
from  the  use  of  a  deadly  weapon,  or  they  may  rebut  the  pre- 
sumption. It  is  then  for  the  jury  to  say  on  all  the  facts, 
whether  malice  or  the  deliberate  intention  to  kill  was  present.3 

1  States.  Johnson,  8 Iowa  525;  State  malice  are  as  follows:  Compton  v. 
v.  Decklotts,  19  Iowa  447.  State,  110  Ala.  24,  20  So.  Eep.  119; 

2  State  v.  Moore,  25  Iowa  128.  See  State  v.  Davis,  9  Houst.  407,  33  Atl. 
Com.  v.  York,  9  Mete.  (Mass.)  93, 121.  Rep.    55;     State    v.    Peo,    9    Houst. 

3 The  cases  which  maybe  consulted  488;  State  v.  Earnest,  56  Kan.  31,  42 
upon    the  presumption    or    proof  of    Pac.  Eep.  359;   State  v.  Jimmerson, 


§  320 


HOMICIDE. 


381 


In  other  words,  a  rebuttable  presumption  of  law  of  a  mali- 
cious intention  always  arises  as  soon  as  a  homicide  with  a 
deadly  weapon  is  proved.  This  may  become  conclusive  if 
no  defense  is  made.  But  it  may  be  rebutted  by  evidence 
coming  from  the  state.  If  this  does  not  happen,  the  accused 
may  offer  evidence  to  show  he  did  the  killing  in  self-defense, 
or  while  insane.  The  presumption  of  malice  thus  removed,  it  is 
for  the  jury  to  find  whether  malice  existed  on  all  the  facts,  and 
not  merely  from  the  use  of  a  deadly  weapon  alone.  If  malice 
is  ascertained  to  have  existed  before  the  killing,  as,  for  ex- 
ample, from  evidence  of  threats,  its  continuance  down  to  the 
homicide  will  be  presumed  as  matter  of  law,  in  the  absence 
of  evidence  to  the  contrary.1 


118  N.  Car.  1173,24  S.  E.  Rep.  494; 
State  v.  Patterson,  45  Vt.  308,  315; 
State  v.  Knight,  43  Me.  11,  138;  Sim- 
mons v.  Com.  (Ky.),  18  S.  W.  Rep. 
534 ;  State  v.  Douglass,  28  W.Va.  297, 
302 ;  Jackson  v.  State,  81  Ala.  33,  35 ; 
Dacey  v.  People,  116  111.  555,  575,  et 
seq.,  6  N.  E.  Rep.  165;  Erwin  v.  State, 
29  Ohio  St.  186,  192;  Lamar  v.  State, 
63  Miss.  265,  272,  274;  McAdams  v. 
State,  25  Ark.  405,  408 ;  State  v.Chavis, 
80  N.  Car.  353,  358;  State  v.  Ariel,  38 
S.  Car.  221,  223,  16  S.  E.  Rep.  779; 
Com.  v.  Drum,  58  Pa.  St.  919;  Young 
v.  State,  95  Ala.  4,  10  So.  Rep.  913; 
Hill  v.  Com.,  2  Gratt.  (Va.)  594,  599, 
603;  State  v.  Willis,  63  N.  Car.  26,  29; 
Murphy  v.  People,  9  Colo.  435,  439; 
Hart  v.  State,  21  Tex.  App.  163,  171, 
17  S.  W.  Rep.  421  ;  Boyle  v.  State,  105 
Ind.  469,  477;  Thomas  v.  People,  67 
N.  Y.  218,  225;  State  v.  Hockett,  70 
Iowa  442,  450;  State  v.  Whitson,  111 
N.  Car.  695,  698;  Stokes  v.  People,  53 
N.  Y.  164,  182;  State?.  Howell,  9 
Ired.  (N.  Car.)  L.  485,  487;  Hansford 
v.  State  (Miss.,  1891),  11  So.  Rep.  106; 
State  v.  Evans,  65  Mo.  574,  580;  Com. 
v.  York,  9  Mete. (Mass.)  93, 103  ;  Davi- 
son v.  People,  90  111.  221,  229;  Cherry 
v.  State  (Miss.,  1897),  20  So.  Rep.  837; 


State  v.  Zeibart,  40  Iowa  169;  State  v. 
Sullivan,  51  Iowa  142 ;  State  v.  Town- 
send,  66  Iowa  741 ;  Donnellan  v.  Com., 
7  Bush(Ky.)  676,  679;  State  v.  Miller,  9 
Houst.  (Del.)  564,  570;  McDermott  v. 
State,  89  Ind.  187, 193;  Allen  v.United 
States,  164  U.  S.  492,  17  S.  Ct.  154. 

1  Riggs  v.  State,  30  Miss.  635,  648 ; 
State  v.  Johnson,  1  Ired.  (N.  Car.)  L. 
354,  363,  364.  "In  most  cases,  in  or- 
der to  prove  malice  as  the  term  is  un- 
derstood in  law,  it  is  necessary  to 
prove  a  killing  with  a  weapon  or  in- 
strument calculated  to  take  life  or  in- 
flict grievous  bodily  harm.  The  law 
implies  malice  where  the  circum- 
stances of  the  homicide  indicate  that 
the  act  proceeded  from  an  evil  dispo- 
sition or  a  heart  regardless  of  social 
duty  and  bent  on  mischief.  For  ex- 
ample, if  death  results  from  a  blow 
with  the  hand,  inflicted  on  a  person 
of  mature  years  and  great  physical 
strength,  no  presumption  of  malice 
arises,  for  usually  death  does  not  en- 
sue from  the  use  of  such  means.  The 
case  would  be  quite  otherwise  if  death 
should  be  caused  by  the  same  blow, 
inflicted  upon  a  new-born  infant,  or 
feeble,  old  person,  or  upon  one  whose 
physical    frame    is    debilitated  from 


382 


CRIMINAL    EVIDENCE. 


§321 


§321.  Connected  crimes.-— Crimes  leading  up  to  or  con- 
nected with  the  homicide,  so  that  they  form  parts  of  one  trans- 
action, may  be  proved  as  part  of  the  res  gestae  to  illustrate  the 
conduct  and  disposition  of  the  accused  about  the  time  of  the 
homicide.1  It  may  be  shown  that  in  the  same  affray,2  or  im- 
mediately before,3  or  thereafter,  the  accused  killed,  or  attempted 
to  kill,4  another  person  than  the  one  for  whose  homicide  he  is 
on  trial.5  Again,  if  the  evidence  shows  that  two  or  more  per- 
sons were  killed  at  or  about  the  same  time  and  place,  and  by 
the  same  weapon,  so  that  the  several  crimes  form  one  transac- 
tion, evidence  of  the  condition  of  any  one  of  the  bodies,  show- 
ing the  cause  or  means  of  death,  as  ascertained  by  an  autopsy, 
or  otherwise,  is  admissible  against  one  on  trial  for  the  homicide 
of  any  one  of  the  deceased  persons.6  But  evidence  of  similar 
crimes  committed  by  the  accused,  not  connected  with  that  for 
which  he  is  tried,  is  not  generally  admissible,  as  such  evidence 
casts  no  light  upon  his  guilt  and  may  prejudice  the  jury  against 
him.7 


§  322.  Conduct  of  the  accused  subsequent  to  the  crime. — The 

perpetration  of  a  homicide  is  well  calculated  to  create  a  perturba- 
tion in  the  mind  of  any  one  implicated  in  it,  that  will  mani- 


disease  or  hunger."  See  remarks  of 
the  court  in  Com.  v.  Fox,  7  Gray  (73 
Mass.)  585,  588. 

1  State  v.  Williamson,  106  Mo.  162, 
170. 

2  People  v.  Pallister,  138  N.  Y.  601, 
605;  Hickam  v.  People,  137  111.  75,  27 
N.  E.  Rep.  88, 89 ;  State  v.  Testermann, 
68  Mo.  408,  415. 

3  State  v.  Fontenot,  48  La.  An.  305, 
19  So.  Rep.  111. 

*Killins  v.  State,  28  Fla.  313,  334; 
People  v.  Craig,  111  Cal.  460,  44  Pac. 
Rep.  186;  State  v.  Gainor,  84  Iowa 
209,  50  N.  W.  Rep.  947;  Benson  v. 
State,  119  Ind.  488,  491;  Wilkerson  v. 
State,  31  Tex.  Cr.  Rep.  86,  90,  19  S.W. 
Rep.  903. 

5  Evidence  may  also  be  given  that 


the  accused  committed  a  burglary  for 
the  purpose  of  obtaining  a  weapon  to 
commit  the  homicide.  People  v.  Rog- 
ers, 71  Cal.  565,  568. 

6  Com.  v.  Sturdivant,  117  Mass.  122, 
132;  State  v.  Hayes  (Utah,  1897),  46 
Pac.  Rep.  752;  People  v.  Foley,  64 
Mich.  148,  157,  158,  31  N.  W.  Rep.  94; 
State  v.  Williamson,  106  Mo.  162, 170; 
State  v.  Perry,  136  Mo.  126,  37  S.  W. 
Rep.  804;  Heath  v.  Com.,  1  Rob.(Va.) 
735,  743 ;  Crews  v.  State,  34  Tex.  Cr. 
Rep.  533,  31  S.  W.  Rep.  373;  Brown 
v.  Com.,  76  Pa.  St.  319,  337;  Com.  v. 
Robinson,  146  Mass.  571,  578;  Green 
v.  Com.  (Ky.,  1896),  33  S.  W.  Rep. 
100;  Morris  v.  State,  30  Tex.  App.  95, 
16  S.  W.  Rep.  757. 

7  See  §§  84,  85,  88,  et  seq. 


§  323  homicide.  383 

fest  itself  by  the  agitation  subsequently  noticeable  in  his  con- 
duct. If  the  charge  that  the  accused  did  t he  killing  is  disputed, 
or  if  it  is  supported  by  circumstantial  evidence  only,  such  evi- 
dence is  peculiarly  appropriate.  It  is  proper,  therefore,  to 
show  that  the  accused  acted  unnaturally  and  confusedly,1  was 
excited  and  nervous  in  manner,  spoke  hurriedly  and  in  a  low 
tone,  looked  pale  and  appeared  greatly  distressed  shortly  after 
the  crime,  or  when  accused  of  it.2  The  conduct  of  the  accused 
after  he  hears  that  he  is  suspected  is  also  relevant.  Any  act 
proving,  or  tending  to  prove,  an  effort  or  a  desire  on  his  part 
to  obliterate  the  evidence  of  a  crime,  as  by  washing  his  hands 
or  clothing  to  remove  blood  stains,  or  by  hiding  or  destroying 
weapons,  concealing  property  proved  to  have  belonged  to  the 
deceased,3  or  his  flight  or  attempts  to  escape,4  or  his  nervous- 
ness or  silence  when  first  charged  with  the  crime,  is  always 
relevant,  for  from  these  facts,  if  unexplained,  the  jury  may 
justly  apprehend  his  mental  condition  and  may  infer  that  they 
indicate  a  consciousness  of  guilt  on  his  part.5 

§  323.  Facts  showing  possible  motive. — Any  evidence  that 
tends  to  show  that  the  defendant  had  a  motive  for  killing  the 
deceased  is  always  relevant  as  rendering  more  probable  the  in- 
ference that  he  did  kill  him.6  Thus  it  may  be  shown  that  the 
deceased  was  possessed  of  a  large  sum  of  money  or  of  personal 
property,7  that  the  defendant  knew,8   or   might  have  known 

^oftsinger  v.  State,  7  Tex.  App.        s  Morris  v.  State,  30  Tex.  App.  95, 

301,  323.  117,  16  S.  W.  Rep.  757. 

2  Burton  t>.  State,  107  Ala.  108,  18  So.        4  Batten  v.  State,  80  Ind.  394,  401. 
Rep.  284;  Campbell  v.  State,  23  Ala.  44,        5  See,    also,   chapter  Consciousness 

69,  70;  Williams  v.  State  (Ark.,  1891),  of  Guilt. 

16  S.  W.  Rep.  816,  818;  McCann  v.        6  Bonner  v.  State,  107  Ala.  97,  18  So. 

State,  21  Miss.  471,  497 ;  State  v.  Brab-  Rep.  226. 

ham,  108  N.  Car.   793,  794;    State  v.        'Kennedy  v.  People,  39  N.  Y.  245, 

Nash,  7  Iowa  347,  382;  State  r.  Bald-  254. 

win,  36  Kan.  1.     The  conduct  and  ap-        8People  v.  Wolf,  95  Mich.  625,  55  N. 

pearance  of  defendant's  wife  after  the  W.  Rep.  357;  Byerst>.  State,  105  Ala. 

crime  is  irrelevant,  if  she  had  no  con-  31,  16  So.  Rep.  716;  States.  Donnelly, 

nection  with  it,     People  v.  Wood,  126  130  Mo.  642,  32  S.  W.  Rep.  1124;  Et- 

N.  Y.  249,  271,  272,  27  N.  E.  Rep.  362.  tinger  v.   Com.,   98  Pa.  St.  338,  349. 


384  CRIMINAL    EVIDENCE.  §  323 

this,1  and  that  personal  property  owned  by  the  deceased  was  found 
in  the  defendant's  possession,2  leading  to  an  inference  that  his 
covetousness  or  necessity  was  tempted.3  Whether  the  posses- 
sion of  money  by  the  deceased  is  so  remote  as  to  render  it  in- 
competent depends  on  circumstances.  If  he  was  an  active 
business  man,  or  kept  a  bank  account,  it  would  be  of  little 
value  to  prove  that  the  accused  knew  he  received  money  sev- 
eral months  before  his  death  unless  other  evidence  showed  its 
retention  in  his  actual  possession.  But  in  the  case  of  a  person 
of  solitary  and  miserly  habits  a  contrary  inference  may  be 
drawn  by  the  jury,4  from  the  fact  that  he  had  received  money 
some  time  prior  to  the  homicide  and  that  the  accused  knew  it. 
Many  motives  equally  strong  may  be  shown.  The  incite- 
ment of  jealousy,5  or  envy,  or  the  desire  to  be  revenged  for  real 
or  fancied  injuries,  is  often  a  potent  motive  for  homicide.  The 
means  and  mode  of  showing  that  the  defendant  was  prompted 
by  revenge  are  elsewhere  treated,6  and  here  it  need  only  be  said 
that  it  is  relevant  to  show  that  the  daughter  of  the  deceased 
had,  by  his  direction,  caused  the  arrest  of  the  accused  for 
bastardy,7  or  that  the  deceased  had  procured  the  indictment  of 
the  accused,8  or  was  a  witness  against  him  or  a  friend,  or  rela- 
tion of  his  in  some  judicial  proceeding  then  pending  or  soon  to 

Under  such  circumstance  a  declara-  fendant  and  the  deceased  were  both 
tion  by  the  deceased  that  he  had  no  suiters  for  the  hand  of  the  same 
money  is  incompetent.  Lancaster  v.  woman,  that  the  former  had  been  re- 
State  (Tex.,  1896),  35  S.  W.  Rep.  165;  jected  and  the  latter  accepted,  and 
Kennedy  v.  People,  39  N.  Y.  245,  253.  that  reports  of  the  engagement   and 

1  Marable  v.  State,  89  Ga.  425,  426,  contemplated  marriage  had  come  to 
427,  15  S.  E.  Rep.  453.  defendant.     Hunter  v.  State,  43   Ga. 

2  Morris  v.  State,  30  Tex.  A  pp.  95,  483,  489,  522,  523;  McCue  v.  Com., 
117,  16  S.  W.  Rep.  757;  People  ».  78  Pa.  St.  185,  189.  See,  also,  Brown 
Smith,  112  Cal.  333,  39  Pac.  Rep.  40.  v.  Com.,  91  Ky.   472,    17   S.  W.    Rep. 

8  Deceased  being  a  Mexican,  it  may  220;  Com.   v.  McManus,  143  Pa.  St. 

be    shown  that   defendant    attended  64,  83,  21  Atl.  Rep.  1018. 

meetings  the  object  of  which  was  to  6  See  §§  327-333. 

get  rid  of  Mexicans  in  that  commu-  'Franklin   t.  Com.,  92  Ky.  612,  18 

nity.     Chalk   v.  State  (Tex.,  1896),  32  S.  W.  Rep.  532,  533,  534. 

S.  W.  Rep.  534.  8Gillum  v.  State,  62  Miss.  547,  552; 

1  Kennedy  v.  People,  39  N.  Y.  245,  Martin  v.  Com.,  93  Ky.  189,  193, 19  S. 

255.  W.  Rep.  580. 

5  It  is  relevant  to  show  that  the  de- 


§  324  homicide.  385 

be  begun.1  The  fact  of  an  improper  intimacy,2  or  illicit  or  in- 
cestuous connection,3  may  always  be  proved  to  show  a  motive, 
when  the  defendant  is  charged  with  the  homicide  of  a  person 
whose  existence  was  an  obstacle  to  the  complete  gratification 
of  his  wrongful  desires.4  And,  again,  it  may  be  shown  that 
the  defendant  was  a  suitor  of  the  sister  of  the  deceased,  that 
the  only  opposition  to  his  suit  was  from  the  deceased,  and  that 
this  fact,  with  the  intention  of  the  woman  to  defer  to  her 
brother's  wishes,  was  known  to  the  accused.5  The  pendency 
of  a  suit  brought  by  the  deceased  against  the  accused  for  a  di- 
vorce,6 or  previous  ill-treatment  and  lack  of  affection  towards 
the  wife,7  or  unlawful  relations  with  another  woman,8  may  be 
shown  where  the  homicide  of  a  wife  is  concerned,  as  supplying 
a  motive.  On  the  other  hand,  the  recent  infidelity  of  a  wife 
may  be  shown  on  the  trial  of  her  husband  for  her  murder,  if 
it  appears  that  he  knew  of  it,  but  not  otherwise. 

§  324.  Competency  of  evidence  showing  the  habits,  charac- 
ter and  disposition  of  the  deceased. — Evidence  of  the  quiet, 
peaceable  disposition,  or  sober  and  industrious  habits  of  the 
deceased,  or  of  his  general  reputation  as  a  good  man  or  worthy 
citizen  can  not  be  proved  in  advance.  These  are  irrelevant  ex- 
cept to  rebut  the  presumption  which  may  result  from  an  attack 
on  his  character  by  the  accused.9     The  rule  is  also  well  settled 

1  Murphy  v.  People,  63  N.  Y.  590,  N.  Y.  424,  435,436;  States.  Green,  35 
594;  Turner  v.  State,  33  Tex.  Cr.  Rep.  Conn.  203,  206;  Traverse  v.  State,  61 
103,  25  S.  W.  Rep.  635;  Marler  v.  Wis.  144;  Stout  v.  People,  4  Park.  Cr. 
State,  68  Ala.  580,  583 ;  Easterwood  v.  Cas.  71  128;  Fraser  v.  State,  55  Ga. 
State,  34  Tex.  Cr.  Rep.  400,  31  S.  W.  325,  327;  People  v.  Parmelee  (Mich., 
Rep.  294;  Johnson  v.  State,  29  Tex.  1897),  70  N.  W.  Rep.  577;  State  v. 
App.  150,  153,  15  S.  W.  Rep.  647;  Chase,  68  Vt.  405,  35  Atl.  Rep.  336. 
State  v.  Fontenot,  48  La.  An.  305.  5  State  v.  Lentz,  45  Minn.  177,  180. 

2  Webb  v.  State,  73  Miss.  456,  19  So.        6Binns  v.  State,  57  Ind.  46,  52. 
Rep.  238 ;  Hall  v.  State,  40  Ala.  698.  7  Siberry  v.  State,  133  Ind.  677,  33  N. 

8  Stout  v.  People,  4  Park.  Cr.  Cas.  E.  Rep.  681,  683. 

(N.  Y.)  71,  128,  129.  8  Johnson  v.  State,  94  Ala.  35,  40,  10 

4  State  v.  Duestrow  (Mo.,  1897),  38  So.    Rep.     667;  Wilkerson    v.   State, 

S.  W.  Rep.  554;  Com.  v.  Ferrigan,  44  31  Tex.  Cr.  Rep.  86,  90,  19  S.  W.  Rep. 

Pa.  St.  386,  387;  Marler  v.  State,  67'  903. 

Ala.    55,   56;   Pierson  v.    People,    79  9Roten  v.  State,  31  Fla.  514,  523,  12 
25— Cr.  Ev. 


386 


CRIMINAL    EVIDENCE. 


§324 


that  the  reputation  of  the  deceased  for  turbulence,  recklessness 
or  violence  is  inadmissible,  unless  the  circumstances  of  the 
case  at  least  raise  a  doubt  whether  the  prisoner  acted  in  self- 
defense.  A  murderer  is  not  excusable  merely  because  the  per* 
son  murdered  was  a  bad  man.1 

But  when  the  evidence  tends  to  show,  in  the  slightest  de- 
gree, that  the  killing  was  in  self-defense,  or  shows  a  hostile 
demonstration  by  the  deceased  against  the  accused  at  the  time 
of  the  killing,  or  even  leaves  it  in  doubt  who  was  the  aggressor, 
it  is  always  relevant  to  show  that  the  deceased  was  a  quarrel- 
some, desperate  and  revengeful  man,2  provided  it  also  appears 
that  his  reputation  as  such  was  known  to  the  defendant.3   The 


So.  Rep.  910 ;  Lemons  v.  State,  97  Tenn. 
560,  37  S.  W.  Rep.  552 ;  Ben  v.  State,  37 
Ala.  103;  Chase  v.  State,  46  Miss.  683, 
707;  Pound  v.  State,  43  Ga.  88,  128; 
Bowman  v.  State  (Tex.,  1893),  21  S. 
W.  Rep.  48;  State  v.  Potter,  13  Kan. 
414,  424;  People  v.  Powell,  87  Cal. 
348,  363 ;  People  v.  Garbutt,  17  Mich. 
9;  Parker  v.  Com.,  96  Ky.  212,  28  S. 
W.  Rep.  500;  State  v.  Nash,  45 La.  An. 
974. 

xWise  v.  State,  2  Kan.  419;  People 
v.  Lamb,  2  Keyes  (N.  Y.)  360,  365,  372 ; 
People  v.  Murray,  10  Cal.  309,  310; 
People  v.  Edwards,  41  Cal.  640;  State 
v.  Thawley,  4  Harr.  (Del.)  562;  State 
v.  Riddle,  20  Kan,  711,  715;  State  v. 
Jackson,  12  La.  An.  679;  Pritchett  v. 
State,  22  Ala.  39;  Com.  v.  Hilliard,  2 
Gray  (Mass.)  294;  Com.  v.  .Ferrigan, 
44  Pa.  St.  386,  388;  State  v.  Field,  14 
Me.  244,  248,  249;  Wesley  v.  State,  37 
Miss.  327,  349;  State  v.  Jackson,  17 
Mo.  544,  548;  Dock's  Case,  21  Gratt. 
909,  911 ;  State  v.  Tilly,  3  Ired.  L.  424, 
435;  State  v.  Barfield,  8  Ired.  L.  344, 
349 ;  Franklin  v.  State,  29  Ala.  14,  17, 
19;  Miers  v.  State  (Tex.  Cr.  App.),  29 
S.  W.  Rep.  1074;  Jenkins  v.  State,  80 
Md.  72,  30  Atl.  Rep.  566;  State  v. 
Stewart,  47  La.  An.  410;  Roten  v. 
State,   31  Fla.   514,  523;    Gardner  v. 


State,  90  Ga.  310;  Evers  v.  State,  31 
Tex.  Cr.  Rep.  318;  Com.  v.  Straesser, 
153  Pa.  St.  451,  456 ;  Davidson  v.  State, 
135  Ind.  254,  261.  See,  also,  Pfomer 
v.  People,  4  Park.  Cr.  Rep.  558, 570-571, 
where  all  the  important  cases  are  dis- 
cussed and  harmonized. 

2  Perry  v.  State,  94  Ala.  25, 30 ;  People 
v.  Anderson,  39  Cal.  703,  704 ;  Roten  v. 
State,  31  Fla.  514,  523;  People  v.  Har- 
ris, 95  Mich.  87,  91 ;  State  v.  Matthews, 
78  N.  Car.  523,  530;  Brownell  v.  Peo- 
ple, 38  Mich.  732;  States.  Kenyon,  18 
R.  I.  217,  26  Atl.  Rep.  199;  Franklin 
v.  State,  29  Ala.  14,  17,  19;  Fields  v. 
State,  47  Ala.  603 ;  State  v.  Collins,  32 
Iowa  36 ;  State  v.  Peffers,  80  Iowa  580, 
583;  State  v.  Downs,  91  Mo.  19,  24 
States  Claude,  35  La.  An.  71,  74,  75 
May  v.  People,  8  Colo.  210,  227,  228 
State  v.  Zellers,  2  Halst.  220,  230 ;  State 
v.  Dumphey,  4  Minn.  438;  Sindram 
v.  People,  88  N.  Y.  196 ;  State  v.  Lull,  48 
Vt.  581 ;  Pfomer  v.  People,  4  Park.  Cr. 
R.  558,  570-581,  citing  cases;  Tiffany 
v.  Com.,  121  Pa.  St.  165;  Rapp  v. 
Com.,  14  B.  Mon.  614;  Stater.  Home, 
9  Kan.  119;  Smith  v.  United  States, 
161 U.  S.  85,  16  S.  Ct.  483 ;  State  v.  Dill 
(So.  Car.,  1897),  26  S.  E.  Rep.  567. 

3  People  v.  Powell,  87  Cal.  348,  363; 
People  v.  Lamb,  2  Keyes  (N.  Y.)  360, 


§  325 


HOMICIDE. 


387 


evidence  of  the  character  of  the  deceased  must  not  be  too  re- 
mote or  it  may  be  excluded  as  irrelevant.  It  is  his  character 
for  peace  and  quietude  at  the  date  of  the  homicide  which  is 
relevant.1 


§  325.  Nature  of  the  proof  required  to  show  character  of  de- 
ceased.— The  majority  of  the  cases  reject  evidence  to  prove  the 
actual  moral  character  or  disposition  of  the  deceased,  i.  e.,  his 
inclination  to  do  right,  but  admit  his  reputation  in  evidence, 
that  is,  the  general  knowledge  or  opinion  of  his  character  and 
disposition  which  prevails  among  his  neighbors  and  acquaint- 
ances.2 

The  reputation  of  the  deceased  for  vindictiveness  or  quarrel- 


364 ;  State  v.  Kennade,  121  Mo.  405, 415; 
State  v.  Nash,  45  La.  An.  974;  States. 
Rollins, 113  N.  Car.  722 ;  Com.  v.  Straes- 
ser,  153  Pa.  St.  451.  "The  general 
principle  then  is  this :  not  that  it  is 
lawful  coolly  to  attack  and  kill  a  per- 
son of  blood-thirsty  character,  *  *  * 
but  that,  whenever  it  is  shown  that  a 
person  honestty  and  non-negligently 
believed  himself  attacked  it  is  admis- 
sible for  him  to  prove  whatever  will 
show  the  bona  fides  of  his  belief.  He 
may  prove  that  his  assailant  had  with 
him  burglar's  tools,  or  deadly  weap- 
ons, or  had  been  lurking  in  the  neigh- 
borhood, on  other  plans  of  violence 
*  *  *  and  may  reason  this  man 
now  attacking  me  is  a  notorious  ruf- 
fian, has  no  peaceable  business  with 
me,  and  his  reputation  and  connec- 
tions forbid  any  other  conclusion  than 
that  his  purpose  is  to  kill  me."  Whar- 
ton Cr.  Ev.,  §  69. 

"  As  a  general  principle  such  evi- 
dence is  inadmissible.  "When  admis- 
sible, it  must  be  in  a  case  where  de- 
fendant had  reason  to  be  in  fear  of  his 
life  or  had  reasonable  ground  to  ap- 
prehend great  bodily  harm.  *  *  * 
Again  it  is  fundamental  to  the  admis- 
sion of  this  class  of  testimony  in  a 


proper  case,  that  knowledge  of  the 
character  of  the  deceased  must  be 
brought  home  to  the  defendant.  It 
might  be  presumed  that  a  man  would 
know  the  character  of  his  wife  in  this 
respect.  Yet  I  think  this  would  not 
dispense  with  the  rule,  that  it  should 
affirmatively  appear  that  he  had  such 
knowledge."  People  v.  Lamb,  2Keyes 
(X.  Y.)  360,  364. 

1  State  v.  Pettit,  119  Mo.  410,  415. 

2  People  v.  Anderson,  39  Cal.  703, 
705;  State  v.  Turpin,  77  N.  Car.  473, 
478 ;  Moriarty  v.  State,  62  Miss.  654, 
661 ;  State  v.  Riddle,  20  Kan.  711,714; 
Thomas  v.  People,  67  N.  Y.  218,  222; 
Abbott  v.  People,  86  N.  Y.  460,  470; 
State  v.  Ford,  37  La.  An.  443,  460; 
State  v.  Kenyon,  18  R.  I.  217,  26  Atl. 
Rep.  199;  State  v.  Smith,  12  Rich.  430, 
441;  Payne  v.  Com.,  1  Mete.  (Ky.) 
370,  397;  State  v.  Keefe,  54  Kan.  197, 
203,204;  Dukes  v.  State,  11  Ind.  557, 
565;  Keener  v.  State,  18  Ga.  194,  222- 
224;  Com.  v.  Hoskins  (Ky.,  1896),  35 
S.  W.  Rep.  284  ;  Stalcup  v.  State  (Ind., 
1 897),  45  X.  E.  Rep.  334.  Contra,  State 
».  Brown,  63  Mo.  439,  443;  Marts  v. 
State,  26  Ohio  St.  162,  168,  admitting 
evidence  of  disposition. 


388  CRIMINAL  EVIDENCE.  §  326 

someness  can  not  be  shown  by  proving  specific  acts  of  violence 
to  third  persons,1  or  single  isolated  and  disconnected  unlawful 
actions  forming  no  part  of  the  res  gestse,2  as,  for  example,  that 
he  was  an  escaped  convict,  or  that  he  had  threatened  to  shoot 
or  kill  a  third  person.3  The  prosecution  may  show  that  de- 
ceased was  unarmed  when  killed,  but  not  that  he  was  in  the 
habit  of  going  unarmed  and  had  refused  to  arm  himself.4 

In  some  states  the  threats  of  the  deceased  or  his  dangerous, 
violent  or  vindictive  character  are  only  admissible  when  it  is 
proved  that,  at  the  time  of  the  homicide,  he  assaulted  the  ac- 
cused, indulged  in  hostile  demonstrations  against  him  or  did 
some  act  indicating  a  purpose  to  do  him  serious  bodily  harm.5 
Mere  evidence  of  an  overt  act,  not  amounting  to  proof,  is  not 
enough.  Whether  an  overt  act  has  been  proved  is  a  prelimi- 
nary question  bearing  on  the  competency  of  evidence,  and  is 
for  the  judge.  His  determination  is  conclusive.6  But  it  has 
been  held  that  the  court  can  not  exclude  evidence  of  bad  char- 
acter and  threats  unless  it  is  satisfied,  not  only  that  no  overt 
act  has  been  proved,  but  that  there  is  no  evidence  from  which 
an  overt  act  can  be  inferred.  If  the  evidence  of  an  overt  act 
is  conflicting,  it  should  go  to  the  jury  with  evidence  of  the  bad 
reputation  and  threats.7  The  overt  act  must  have  been  against 
the  accused  and  not  a  third  person.8 

§  326.  Evidence  of  threats  by  the  deceased. — Evidence  of 
threats  by  the  deceased,  whether  made  to  the  accused  or  to 
others,  and  communicated  to  him,  is  always  admissible  to 
show  the  defendant's  motive.     If  the  evidence  tends  to  show 

1  People  v.  Powell,  87  Cal.  348,  361.  3  Jenkins  v.  State,  80  Md.  72,  30  Atl. 

2Ferrill  ».  Com.  (Ky.,   1894),  23  S.  Eep.  566;  Ryan  v.  State  (Tex.,  1896), 

W.  Rep.  344;  Eggler  v.  People,  56  N.  35  S.  W.  Rep.  288. 

Y.  642,  643 ;  People  v.  Druse,  103  N.  Y.  4  People  v.  Powell,  87  Cal.  348,  363. 

655,  656;  Campbell  v.   State,  38  Ark.  5  State  v.  King,  47  La.  An.  28;  West 

498;  Garrett  v.  State,  97  Ala.  18,  25;  v.  State,  18  Tex.  App.  640,  652;  Eiland 

Dupree  v.    State,   33   Ala.   380,   387;  v.  State,  52  Ala.  322,  333;  Hill  v.  State 

Nichols  v.  People,  23  Hun  (N.  Y.)  165,  (Miss.,  1895),  16  So.  Rep.  901. 

167;  Croom  v.  State,  90  Ga.  430,434;  6  State  v.  Ford,  37  La.  An.  443,  460. 

State  v.  Jones,  134  Mo.  254,  35  S.  W.  7  State  v.  Abbott,  8  W.  Va.  741,  759; 

Rep.  607 ;  State  v.  Peffers,  80  Iowa  580,  Hawthorne  v.  State,  61  Miss.  749,  753, 

583.  8  Moriarty  v.  State,  62  Miss.  654,  661. 


§  326 


HOMICIDE. 


389 


that  the  killing  was  in  self-defense,  threats  may  be  proved  to 
show  that  the  accused  believed  he  was  in  imminent  danger  of 
death  or  wounding  by  the  deceased.1  The  accused  may  prove 
the  existence  of  a  conspiracy  to  kill  or  assault  him  in  which 
deceased  participated.  If  the  homicide  occurred  in  an  affray 
growing  out  of  it,  he  may  prove  the  acts  and  threats  of  any  or 
all  the  conspirators  as  the  acts  and  declarations  of  the  deceased, 
for  the  same  purposes  that  threats  actually  made  by  the  de- 
ceased may  be  shown.2  The  general  rule  permits  the  com- 
municated threats  of  the  deceased  to  be  proved,  though  no 
evidence  of  any  overt  act  is  offered.3)^  But  threats  are  inadmis- 
sible if  it  indubitably  appears  that  the  accused  was  the  aggres- 
sor, or  that  he  had  no  reasonable  grounds  for  apprehending 
an  attack  when  he  killed  the  deceased.4  The  admissibility  of 
threats  usually  depends  on  the  fact  that  they  were  communi- 
cated to  the  accused  before  the  homicide.  But  uncommuni- 
cated  threats  may  be  received  to  corroborate  those  communi- 
cated,5 and  to  show  the  mental  condition  of  the  deceased. 
Sometimes  the  former  may  be  regarded  as  of  the  res  gestae, 
explaining  some  act  already  in  evidence,  as,  for  example,  to 
show  the  mental  state  of  the  deceased  when  the  question  is, 


1  State  v.  Turpin,  77  N.  Car.  473, 
480;  State  v.  Abbott,  8  W.  Va.  741, 
759;  State  v.  Gainor,  84  Iowa  209, 
214,  50  N.  W.  Rep.  947;  State  v.  Dod- 
son,  4  Ore.  64,  68,  69;  King  v.  State, 
55  Ark.  604,  607;  Lewis  v.  Com.,  78 
Va.  732,  735;  Eiland  v.  State,  52  Ala. 
322,  333;  State  v.  Robertson,  30  La. 
An.  340,  341 ;  Hawthorne  v.  State,  61 
Miss.  749,  752;  Dickson  v.  State,  39 
Ohio  St.  73,  78;  Wood  v.  State,  92 
Ind.  269,  273-275;  Pitman  v.  State,  22 
Ark.  354,  357;  Wallace  v.  United 
States,  162  U.  S.  466,  16  S.  Ct.  859 ; 
State  v.  Sullivan,  43  S.  Car.  205 ;  Gray- 
son v.  Com.  (Ky.,  1896),  35  S.  W. 
Rep.  1035 ;  Lester  v.  State,  37  Fla.  382, 
20  So.  Rep.  232;  Henson  v.  State 
(Ala.,  1897),  21  S.  Rep.  79;  Under- 
bill on  Ev.,  pp.  27  and  69. 


2  Williams  v.  People,  54  111.  422,  423, 
426 ;  People  v.  Lee  Chuck,  74  Cal.  30, 
35,  36,  15  Pac.  Rep.  322. 

3  State  v.  Abbott,  8  W.  Va.  741,  759. 

4  Steel  v.  State,  33  Fla.  348,  14  So. 
Rep.  841 ;  State  v.  Spell,  38  La.  An. 
20,  22 ;  Moriarty  v.  State,  62  Miss.,  654, 
661;  Ball  v.  State,  29  Tex.  App.  107, 
125, 14  S.  W.  Rep.  1012 ;  Payne  v.  State, 
60  Ala.  80,  87 ;  State  v.  Guy,  69  Mo. 
430,  435;  Hill  v.  State  (Miss.,  1895),  16 
So.  Rep.  901;  People  v.  Lynch,  101 
Cal.  229,  231;  State  r.  Reed  (Mo., 
1897),  38  S.  W.  Rep.  574;  State  v. 
Nocton,  121  Mo.  537,  552;  State  v. 
Vaughan,  22  Xev.  285,  39  Pac.  Rep. 
733;  State  v.  King,  47  La.  An.  28; 
State  v.  Fontenot,  48  La.  An.  305,  19 
So.  Rep.  111. 

5  Roberts  v.  State,  infra. 


390 


CRIMINAL    EVIDENCE. 


§327 


did  he  intend  to  harm  the  accused,  and  was  he  the  attacking 
party  in  the  affray  during  which  he  was  killed?  Uncom- 
municated  threats  are  then  relevant  to  show  he  provoked  the 
affray,  or  to  explain  the  intention  with  which  he  participated 
in  it,  or  to  illustrate  the  character  of  the  attack.1  Evidence 
from  the  accused  showing  the  communication  to  him  of  a 
threat  does  not  permit  him  to  testify  that  he  then  said  he  had 
never  injured  the  deceased  and  intended  to  avoid  trouble  with 
him."  A  witness,  called  to  prove  threats,  may  state  his  reply 
thereto  as  a  part  of  the  res  gestse.3  But  he  can  not  be  allowed 
to  express  an  opinion  that  the  threats  have  been  carried  into 
execution.  That  question  is  for  the  determination  of  the  jury.4 
Evidence  to  prove  threats  must  tend  directly  to  show  an  inten- 
tion to  injure  the  accused  by  violence.  A  statement  by  the 
deceased  that  he  is  prejudiced  against  the  accused  is  not  a 
threat.5 

§  327.  Evidence  to  prove  the  peaceable  character  of  the  ac- 
cused.— The  rules  regulating  evidence  of  character  in  criminal 
cases  are  applicable.6  The  state  can  not  attack  the  character 
of  the  defendant  in  the  first  instance,7  though  it  may  do 
so  after  he  has  sought  to  prove  his  good  character.  An  ac- 
cused person  may  always  offer  evidence  of  his  reputation,  as  a 
quiet,  peaceable  and  inoffensive  man  wherever  the  fact  that  he 
committed  the  homicide,  or,  if  he  admits  that  he  did  commit 


1  State  v.  Downs,  91  Mo.  19,  25 
People  v.  Travis,  56  Cal.  251,  253,  254 
Stokes  v.  People,  53  N.  Y.  164,  165 
Mayfield  v.  State,  110  Ind.  591,  594 
Leverich  v.  State,  105  Ind.  277,  280 
Martin  v.  State,  5  Ind.  App.  453 
456;  State  v.  Turpin,  77  N.  Car.  473 
480;  Hart  v.  Com.,  85  Ky.  77,  80 
State  v.  Labuzan,  37  La.  An.  489 
Little  v.  State,  6  Baxt.  (Tenn.)  491 
493;  Dickson  v.  State,  39  Ohio  St.  73 
76;  State  v.  Faile,  43  S.  Car.  52,  20  S 
E.  Rep.  798;  Garner  v.  State,  28  Fla 
113;  Brown  v.  State,  55  Ark.  593,  603 


State  v.  Helm,  92  Iowa  540,  61  N.  W. 
Rep.  246 ;  State  v.  Cushing,  14  Wash. 
527,  45  Pac.  Rep.  145;  Wiggins  v. 
United  States,  93  U.  S.  465 ;  Campbell 
v.  People,  16  111.  17;  Prine  v.  State 
(Miss.,  1896),  19  So.  Rep.  711. 

2  Angus  v.  State,  29  Tex.  App.  52, 
14  S.  W.  Rep.  443. 

3  People  v.  Palmer,  105  Mich.  568,  63 
N.  W.  Rep.  656. 

4  State  v.  Coella,  3  Wash.  St.  99. 

5  State  v.  Wyse,  33  S.  Car.  582,  594. 

6  See  §§  76-85. 

7  State  v.  Lodge,  9  Houst.  542. 


328 


HOMICIDE. 


391 


it,  the  criminal  intent  is  in  doubt  upon  the  whole  evidence.1 
The  state  must  not  be  permitted  to  introduce  evidence  of  the 
bad  disposition  of  the  accused  as  distinguished  from  his  repu- 
tation,2 nor  may  it  show  that  he  possessed  a  nervous  tempera- 
ment, was  excitable  and  eccentric,8  or  that  he  has  been  guilty  of 
particular  acts  of  bad  conduct.  All  such  evidence  is  equally 
irrelevant  to  show  guilt. 

§  328.  Threats  by  the  accused — General  nature  of  these 
threats. — Evidence  of  threats  made  by  the  accused,  or  by  a  co- 
defendant  in  the  presence  of  the  accused,  or,  if  in  his  absence, 
subsequent  to  the  date  when  a  conspiracy  existed,4  prior  to  the 
killing,  is  always  relevant  to  show  malice,  or,  when  made  long 
before,  to  show  deliberation  and  premeditation.5  It  is  imma- 
terial that  the  threats  were  not  directed  against  the  deceased 
individually,6  as  where  they  were  made  against  a  railroad  com- 
pany by  which  the  deceased  was  employed,7  or  against  "  any 


1  Warren  v.  State,  31  Tex.  Cr.  App. 
573,  576 ;  Walker  v.  State,  102  Ind.  502, 
506;  State  v.  Cross,  68  Iowa  180,  195; 
Hall  v.  State,  132  Ind.  317,  323,  31 
N.  E.  Rep.  536;  McCarty  v.  People,  51 
111.  231,  232;  McDaniel  v.  State,  16 
Miss.  401,405. 

2 Thomas  v.  People,  67  N.  Y.  218, 
223. 

3  Com.  v.  Cleary,  148  Pa.  St.  26,  23 
Atl.  Rep.  1110. 

4  Ford  v.  State,  112  Ind.  373,  382. 

5  State  ».  Birdwell,  36  La.  An.  859; 
Carr  v.  State,  23  Neb.  749;  Mathis  v. 
State,  34  Tex.  Cr.  Rep.  39,  28  S.  W. 
Rep.  817;  State  v.  Rash,  12  Ired.  (N. 
Car.)  Law  382,  384;  State  v.  Green,  1 
Houst.  Cr.  C.  (Del.)  217;  Griffin  v. 
State,  90  Ala.  596,  599,  8  So.  Rep.  <>70 ; 
State  v.  Partlow,90  Mo.  608, 609 ;  State 
v.  McCahill,  72 Iowa  111,117;  Goodwin 
v.  State,  96  Ind.  550,  552;  La  Beau  ». 
People",  34  N.  Y.  223,  21".);  Westbrook 
v.  People,  126  111.81,91;  Schoolcraft 
v.  People,  117  111.  271;  Riggs  r.  State, 


30  Miss.  635 ;  Nichols  v.  Com.,  11  Bush 
(Ky.)   575,   580;    State    v.    Hoyt,   46 
Conn.     330,     336;    State    v.    Larkins 
(Idaho,    1897),    47    Pac.     Rep.    945 
Brooks  v.  Com.  98  Ky.  143,  37  S.  W 
Rep.  1043;  Wilson  v.  State,  110  Ala 
1,    20   So.    Rep.  415;  Drake  v.   State 
110  Ala.  9,  20  So.  Rep.  450;  Allen  r 
State  111   Ala.   80,  20  So.   Rep.  490 
Phillips  v.    State,  62  Ark.  119,  34  S 
W.  Rep.  539;  People  v.  Evans  (Cal., 
1896),   41   Pac.    Rep.   444;    Tattle 
Com.  (Ky.,  1896),  33  S.  W.  Rep.  823; 
State  v.    Pain,  48  La.    Ann.   311,    19 
So.  Rep.  138;  Linehan  r.  State  (Ala., 
1897),  21  So.  Rep.  497;   McDaniel  v. 
State  (Ga.,  1897),  27  S.  E.  Rep.  158; 
Underbill  on  Ev.,  §§  9,  5,  52. 

6  Benedict  v.  State,  14  Wis.  423,  426 ; 
Harrison  v.  State,  79  Ala.  29;  State  v. 
Harlan,  130  Mo.  381,  407;  State  v. 
Hymer,  15  New  49;  State  v.  Hoyt,  47 
Conn.  518. 

7  Newton  v.  State,  92  Ala.  33,  36,  9 
So.  Rep.  404. 


392  CRIMINAL  EVIDENCE.  §  329 

one  who  hits  A,"1  against  a  family  by  name,2  or  a  class  of  men, 
as  policemen,3  or  against  any  man  whose  attentions  should 
be  received  by  the  woman  with  whom  he  was  intimate,4  ana 
one  member  only  of  the  class  or  family  is  slain  by  the  accused. 
When,  however,  it  clearly  appears  that  the  accused  and  the 
deceased  were  acquainted,  and  had  always  been  friends  down 
to  the  homicide,  general  threats  by  the  accused  are  incompe- 
tent.5 So,  too,  a  specific  threat  directed  against  one  person  by 
name  is  not  relevant  on  a  trial  for  the  homicide  of  another,6 
unless,  perhaps,  when  the  threat  has  been  executed  and  the 
motive  for  the  killing  of  both  persons  was  the  same.7 

§  329.    Form,  character  and  mode  of  proving  threats. — The 

relevancy  of  threats  depends  largely  upon  the  light  they  shed 
upon  previous  malice  or  premeditation.  Hence  their  remoteness 
in  time  is  no  objection  to  their  reception,8  though  it  may,  and 
indeed  must,  be  considered  in  determining  their  weight  as  evi- 
dence of  existing  intent.9  For  it  is  manifest  that  a  threat  made 
long  prior  to  the  commission  of  a  homicide  may  indicate  that 
it  was  the  culmination  and  outcome  of  long-continued  rancor 
rather  than  the  result  of  a  sudden  and  momentary  outburst  of 
passion,10  while  the  fact  that  a  threat  is  unrepeated  and  unexe- 
cuted for  many  years  may  indicate  that  the  feelings  of  hatred 
or  revenge  have  died  out.11  The  language  used  need  not  be 
specific   as   regards  the  means  by  which,12  or  as  to  the   time, 

Jordan  v.  State,  79  Ala.  9,  12.  105;  State  v.  McCahill,  72  Iowa  111, 

2  People  v.  Craig,  111  Cal.  460,  44  State  v.  Compagnet,  48  La.  Ann.  1470, 
Pac.  Rep.  186;  State  v.  Belton,  24  S.    21  So.  Rep.  46. 

Car.  185,  187,  190.  8  Jefferds  v.  People,  5  Park.  Cr.  Cas. 

3  Dixon  v.  State,  13  Fla.  636,  645 ;  522  (two  years)  ;  Redd  v.  State,  68 
Whitaker  v.  Com.,  17  S.  W.  Rep.  358;  Ala.  492;  Everett  v.  State,  62  Ga.  65; 
State  v.  Grant,  79  Mo.  113.  State  v.  Campbell,  35  S.  Car.  28,  32; 

4  Brown  v.  State,  105  Ind.  385,  392.  Goodwin  v.  State,  96  Ind.  550,  552. 

5  State  v.  Crabtree,  111  Mo.  136,  20  9  State  v.  Hoyt,  46  Conn.  330,  337 
S.  W.  Rep.  7.  (thirteen  years) ;  Frizzell  v.  State,  30 

6  Carr  v.  State,  23  Neb.  749,  761 ;  Ab-  Tex.  App.  42,  16  S.  W.  Rep.  751. 
ernethy  v.  Com.,  101  Pa.  St.  322,  330;  10  Jefferds  v.  People,  5  Park.  Cr.  Cas. 
People  v.  Bezy,  67  Cal.  223 ;  Clarke  v.  522,  541,  561. 

State,  78  Ala.  474.  n  State  v.  Hoyt,  46  Conn.  330,  337. 

7  Woolfolk  v.  State,  85  Ga.  69,  104,        12  Schoolcraft  v.  People,  117  111.  271. 


§  330  homicide.  393 

place  or  manner  in  which,  violence  is  to  be  inflicted.  It  is 
for  the  court  to  say  whether  the  utterance  of  the  defendant  im- 
ports a  threat,  and  the  cases  go  very  far  in  admitting  as  a  threat 
any  declaration  which  indicates,  however  vaguely  and  indefi- 
nitely, an  intention  on  the  part  of  the  accused  to  inflict  vio- 
lence upon  the  deceased.  Nor  is  it  material  that  the  killing 
was  accomplished  by  the  use  of  means  which  differ  widely 
from  those  mentioned  in  the  threat.2  It  is  not  necessary  that 
the  witness  should  be  able  to  relate  the  whole  conversation 
of  which  the  threat  formed  a  part,3  or  that  the  threat 
should  have  been  uttered  in  his  presence,  or  to  him,  or  that 
he  should  have  recognized  the  defendant's  voice,  if  the  evi- 
dence shows  that  the  accused  and  the  deceased  were  so  situated, 
as  respects  the  witness,  that  he  must  have  heard  all  that  was 
said,4  as  when  he  overhears  threats  made  by  the  deceased,  who, 
while  intoxicated  and  alone,  was  talking  to  himself.5 

§  330.    Declarations  forming  a  part  of  the  res  gestae. — The 

rule  of  the  res  gestse  is  applicable  to  the  acts  and  declarations  of 
the  accused  and  other  persons  which  are  attendant  upon  the 
homicide.6  Hence  statements  by  the  deceased  made  before  or 
immediately  after  the  killing,  but  connected  with  and  explana- 
tory of  an  act  which  led  up  to  or  prepared  for  it,  are  relevant  to 
show  his  mental  state  and  motives,7  to  show  where  he  was 
going  about  the  time  of  the  homicide,8  or  to  identify  the  de- 
fendants.9    His  declaration  that  he  preferred  to  use  a  knife  in 

1  Drake  o.St  ate,  110  Ala.  9, 20  So. Rep.  pie  v.  Hawes,  98  Cal.  648 ;  State  v.  Tal- 
450.  In  this  case  the  defendant  said  hert,  41  S.  Car.  526;  Coin.  v.  Werntz, 
to  the  deceased,  "I  will  see  you  161  Pa.  St.  591,  29  Atl.  Rep.  272;  Von 
later."  Pollnitz  v.  State,  92  Ga.  16,  18  S.  E. 

2  La  Beau  v.  People,  34  N.Y.  223,  229.  Rep.  301 ;  Boyle  v.  State,  97  Ind.  322 ; 

3  State  v.  Oliver,  43  La.  An.  1003.  Appleton  v.  State,  61  Ark.  590;  Harris 

4  Short  v.  Com.  (Ky.),4S.  W.  Rep.  v.  State,  96  Ala.  24,  29,  11  So.  Rep. 
810,811.  255;  Edmonds  v.  State,  34  Ark.  720, 

5 Smith  v.  Com.  (Ky.),  4  S.  W.  Rep.  734-736;  Gibson  v.  State  (Miss.,  1895), 

798,  799.  16  So.  Rep.  298;  State  v.  Harris,  63 

6See  §§94-103,  ante.  N.  Car.  1,  6. 

7  State   v.   Moelchen,  53  Iowa  310;  8  State  v.  Vincent,  24  Iowa  570. 

State  v.  Rollins,  113  N.  Car.  722 ;  Peo-  9  Cox  v.  State,  8  Tex.  App.  254. 


394  CRIMINAL  EVIDENCE.  §  330 

assaulting  persons  as  it  was  more  reliable  than  a  pistol,1  or 
that  he  wished  to  procure  the  arrest  of  the  defendant  for 
threatening  him,2  is  relevant  to  show  the  motive  and  inclina- 
tion of  the  deceased  to  commit  crime. 

But  declarations  prior  to  the  crime  forming  no  part  of  the 
res  gestae  of  a  relevant  act  and  not  communicated  to  the  accused, 
or  if  known  to  him  not  acquiesced  in,3  or  statements  and  ac- 
cusations by  deceased  which  are  narrative  in  their  form  and 
character,  and  inadmissible  as  dying  declarations,  are  generally 
rejected.4 

Declarations  of  the  accused  prior  to  the  crime  can  not  be 
put  in  evidence  for  him  unless  they  are  so  intimately  connected 
with  it  or  with  a  relevant  and  connected  transaction  as  to  form 
a  part  of  it.  He  can  not  prove  his  utterances  at  the  time  he 
bought  the  weapon  with  which  the  homicide  was  committed  to 
show  the  innocence  of  the  motives  which  prompted  the  pur- 
chase.5 But  the  declarations  of  the  accused  uttered  before  the 
crime  indicating  that  he  entertained  enmity  towards  the 
deceased  or  towards  a  class  of  persons  to  which  he  belonged, 
or  that  he  was  contemplating  the  commission  of  a  homicide,6 
or  other  crime  upon  him,7  or  some  person  whose  name  is  not 


1  Boyle  v.  State,  97  Ind.  322,  325.  Wilson  v.  People,  94  111.  299.     Decla- 

2  State  v.  Moelchen,  53  Iowa  310.  rations  as  to  slayer  not  made  in  ex- 

3  People  v.  Gress,  107  Cal.  461,  40  tremis  must  be  a  part  of  the  res  gestae. 
Pac.  Rep.  752;  State  v.  Punshon,  124  Mayes  v.  State,  64  Miss.  329,  333; 
Mo.  448;  Com.  v.  Gray  (Ky.,  1895),  30  Jones  v.  State,  71  Ind.  66. 

S.  W.   Rep.  1015;   Macklin   v.  Com.,  5  State  v.  Holcomb,  86  Mo.  371,  378; 

93Ky.294, 19S.W.  Rep.931 ;  Weyrich  Johnson  v.  State,  22  Tex.   App.  206. 

v.  People,  89  111.  90,  96-98.  Contra,   Roller  v.  State  (Tex.,  1897), 

4  State  v.  Noeninger,  108  Mo.  166, 18  38  S.  W.  Rep.  44. 

S.   W.   Rep.   990;    State  v.  Duestrow  6  State  v.  Ellis,  101  N.  Car.  765,  768, 

(Mo.,  1897 !,  38  S.  W.  Rep.  554 ;  Steven-  7  S.  E.  Rep.  704 ;  State  v.  Vallery,  47 

son  v.  State,  69  Ga.  68;  Hall  v.  State,  La.   An.   182;   State  v.  Home,  9  Kan. 


132  Ind.  317,  322,  31  N.  E.  Rep.  536 
State  v.  Carlton,  48  Vt.  636,  641 
Bedingfield's  Case,  14  Cox  C.  C.  341 


119;  State  v.  Windahl  (Iowa,  1896),  64 
N.  W.  Rep.  420;  Denson  v.  State 
(Tex.,  1896),  35  S.  W.  Rep.  150. 


Lambright  v.  State,  34  Fla.  564;  Liv-        7Mimms  v.  State,  16  Ohio  St.  221, 
ingston  v.  Com.,  14  Gratt.  (Va.)  592;     223. 
State  v.  Frazier,  1  Houst.  Cr.  Cas.  176 ; 


§  331  HOMICIDE.  395 

mentioned,1  are  always  admissible  as  of  the  res  gestae  tending 
to  increase  the  probability  that  he  is  the  slayer.2 

§  331.  Declarations  of  third  parties  and  cries  and  exclama- 
tions of  bystanders. — Declarations  or  exclamations  uttered  by 
third  persons,  not  associated  with  the  accused,  after  the  com- 
mission of  the  homicide  not  forming  a  part  of  the  res  gestae,  or 
acquiesced  in  by  the  defendant,  are  not  admissible  against  him,3 
except  so  far  as  such  declarations  may  be  introduced  for  the 
sole  purpose  of  impeaching  a  witness  by  showing  contradictory 
statements.4  The  exclamations  or  declarations  of  bystanders 
uttered  during  or  immediately  after  the  commission  of  the 
crime  are  often  received  as  a  part  of  the  res  gestae.5  In  order 
that  the  exclamations  of  bystanders  may  be  received,  it  must  be 
shown  that  they  were  in  some  way  connected  with  the  main 
fact.  So  where  it  was  alleged  that  defendant  had  shot  deceased 
with  a  pistol  on  a  car  platform,  and  had  thrown  the  body  from 
the  train  while  it  was  in  motion,  passengers  on  the  train  were 
not  permitted  to  testify  to  exclamations  made  by  persons  stand- 
ing on  the  platform  where  the  homicide  had  been  committed.6 

§  332.    Threats  against   deceased   by  third   persons. — The 

general  rule  is  that  threats  by  a  third  person  against  the  de- 
ceased  are   inadmissible  to  absolve   the  accused.7     The   latter 

1  Butler  v.  State,  33Tex.  Cr.  Rep.  232,  v.  Shattuck,  109  Cal.  673,  42  Pac.  Rep. 

26  S.W. Rep.  201;  Palmer  v.  People,  138  315. 

111.  356,  28  N.  E.  Rep.  130.     Declara-  4Mixon  v.  State,  55  Miss.  525;  Ken- 

tions  of  accused,  just  before  the  kill-  dall  v.  Com.    (Ky.,   1892),   19  S.   W. 

ing  that  he  felt  like  killing  some  one,  Rep.  173. 

are   admissible.     Muscoe  v.  Com.,  87  5  Johnson  v.  State,  88  Ga.  203.     See 

Va.  460,  12  S.  E.  Rep.  790.  cases,    §101.       Exclamations    of    by- 

2Newcomb  v.   State,  37  Miss.   383,  standers  "there  he  comes  with  a  gun," 

399.  referring  to   the   accused,  have  been 

s  Allen  v.  State,  111  Ala.  80,  20  So.  received.     State     v.     Biggerstaff,     17 

Rep.  490;  State  v.  Ramsey,  48  La.  An.  Mont.  510,  43  Pac.  Pep.  7Q9. 

1407,  20  So.  Rep.  904.    See  Sanders  v.  6Bradshaw  o   Com.,  10  Bush  (Ky.) 

Com.  (Ky.),  18  S.W.  Rep.  528;  Brooks  576.     See,   also,    Felder   ».    State,   23 

v.  State,  96  Ga.  353 ;  State  v.  Sneed,  88  Tex.  App.  477,  486. 

Mo.  138,  140-142;  People  v.  Wallace,  7  Henry  v.  State  (Tex.,  1S95),  30  S. 

89  Cal.  158,  26  Pac.  Rep.  650;  People  W.  Rep.  802;    Wilkins  v.  State  (Tex., 


396  CRIMINAL  EVIDENCE.  §  333 

may  introduce  direct  evidence  to  show  that  some  one  else  com- 
mitted the  crime.  If  the  connection  of  the  third  party  with 
the  crime  is  shown  prima  facie,  his  threats  may  be  received  in 
corroboration  or  to  show  a  motive  to  kill  the  deceased.1  If  the 
accused  admits  the  killing,  threats  of  a  third  person  should  be 
rejected.  If  this  fact  is  in  doubt,  and  particularly  if  the  evi- 
dence is  wholly  circumstantial,  the  threats  of  a  third  person, 
not  shown  to  have  been  connected  with  the  crime,  may  be  re- 
ceived.2 The  names  of  the  persons  and  the  circumstances  at- 
tending the  threats  must  be  stated.3  The  defendant  may  prove 
threats  against  the  deceased  made  by  a  witness  who,  testifying 
as  an  accomplice,  alleges  he  was  instigated  by  defendant  to 
commit  the  crime  to  show  that  the  witness  was  actuated  by 
personal  motives  involving  malicious  intent.4 

§  333.    Animosity  between  the  accused  and  the  deceased. — 

Where  the  existence  of  present  malice  or  premeditation  is  in 
issue,  evidence  of  previous  quarrels  or  difficulties  between  the 
accused  and  the  deceased  is  always  received5  if  the  parties  have 
not  become  completely  and  permanently  reconciled.6  Thus, 
evidence  that  the  accused  had  frequently  quarreled  with,  bru- 
tally beaten  and  threatened  to  kill  his  wife,  with  whose  murder 
he  is  charged,  or  had  made  remarks  reflecting  on  her  charac- 
ter,7 is  competent  to  enable  the  jury  to  determine  whether  mal- 
ice was  present.  The  fact  that  these  marital  bickerings  cover 
a  period  of  years  and  continue  down  to  the  death,  strengthens 

1896),  34  S.  W.  Rep.  627;  State  v.  Pace  v.  Corn.  (Ky.,  1897),  37  S.  W. 
Beaudet,  53  Conn.  536.  Rep.  948. 

1  State  v.  Davis,  77  N.  Car.  483 ;  State        4  Marler  v.  State,  67  Ala.  55,  66. 

v.  Haynes,  71  N.  Car.  79;    Crookham  5 Nicholas  v.  Corn.,  91  Va.  741,  21  S. 

v.   State,   5  W.  Va.   510;    Boothe   v.  E.  Rep.  364,  366;  State  v.  Pennington, 

State,  4  Tex.  App.  202.  124  Mo.  388;    State  v.  Rash,  12  Ired. 

2  Murphy  v.  State  (Tex.,  1896),  35  S.  (N.  Car.)  L.  382;  State  v.  Pike,  65  Me. 
W.  Rep.  174;  Com.  v.  Ahhott,  130  111;  State  v.  Petsch,  43  S.  Car.  132; 
Mass.  472,  476;  State  v.  Hawley,  63  State  v.  Crafton.  89  Iowa  109;  Mc- 
Conn.  47;  Alexander  v.  United  States,  Bride  v.  People,  5  Colo.  App.  91. 

138  U.  S.  353.  6Tidwell  v.  State,  70  Ala.  33,  46. 

'State  v.  Johnson,  31  La.  An.  368;        'People  v.  Buchanan,  145  N.  Y.  1. 


§  334  homicide.  397 

this  evidence.1  This  evidence  is  received  for  the  same  reason 
that  previous  threats  by  any  person  are  admissible.2  It  tends 
to  show  the  existence  of  animosity  between  the  parties,  and  its 
relevancy  results  from  the  fact  that  the  existence  of  prior  ill- 
feeling  not  only  renders  the  commission  of  the  crime  more 
probable,  but  tends  to  show  the  malice  or  premeditation  of  the 
accused.3  It  is  immaterial  how  remote  in  time  the  hostile  acts 
were,  as  far  as  the  competency  of  the  evidence  is  concerned,4 
nor  can  the  details  of  the  previous  difficulty  be  proved  to 
show  which  party  was  in  the  wrong.5 

Evidence  of  prior  ill-feeling  between  the  defendant  and  the 
deceased  is  admissible  in  favor  of  the  former  as  well  as  against 
him.  This  is  the  case  where  a  plea  of  provocation  or  self-de- 
fense is  made  and  the  evidence  is  contradictory  as  to  whom 
was  the  aggressor.6 

§  334.  Expert  and  non-expert  evidence  as  regards  blood 
stains. — All  persons  are  more  or  less  familiar  with  the  appear- 
ance of  stains  caused  by  blood.  It  has,  therefore,  been 
repeatedly  held  from  time  immemorial  that  ordinary  witnesses 
may  testify  that  certain  stains  on  clothing  or  other  articles 
"  look  like  "  or  resemble  blood  stains.  No  peculiar  skill  or 
experience  is  required  to  be  possessed  by  a  witness  who  saw 
the  stains  in  court  or  elsewhere  to  render  his  evidence  admissi- 

^Greenl.  Ev.,  §145;    Koerner  v.  4  Sayres  v.   Com.,   88  Pa.  St.   291; 

State,  98  Ind.  7,  25;   State  v.  O'Neil,  Koerner  v.  State,  98  Ind.  7. 

51  Kan.  651,  665 ;   McCann  v.  People,  5  People  v.  Thomson,  92  Cal.  506. 512. 

3  Park.  Cr.  Rep.  272;  Sayres  v.  Com.,  6Cox\vell  v.  State,  66  Ga.  309,  313; 

88  Pa.  St.  291;    State  v.  Bradley,  67  Wellar  v.  People,  30  Mich.  16;  Gunter 

Vt.  465,  32  Atl.  Rep.  238;    Phillips  v.  v.  State,  111  Ala.  23,  20  So.  Rep.  632; 

State  (Ark.,  1896),  34  S.  W.  Rep.  539;  People  v.  Hecker,  109  Cal.  451,  42  Pac. 

Thiede  v.  Territory,  159  TJ.  S.  510.  Rep.  307;    Stewart  t>    State,   78   Ala. 

2  A  non-expert  witness  may  he  per-  436;  State  v.  Cooper,  32  La.  An.  1084; 
mitted  to  give  an  opinion  that  the  de-  McMeen  v.  Com.,  114  Pa.  St.  300; 
ceased  and  the  defendant  were  on  Marnoch  v.  State,  7  Tex.  App.  269, 
good  terms.  State  v.  Stackhouse,  24  272  (to  explain  why  defendant  went 
Kan.  445,  453.  armed  to  the  place  where  he  met  de- 

3  White  v.  State,  30  Tex.  App.  652,  ceased);  State  v.  Seymore  (Iowa, 
18  S.  W.  Rep.  462;  Finch  v.  State,  81  1895),  63  N.  W.  Rep.  661;  Austin  v. 
Ala.  41,  50.  Com.  (Ky.,  1897),  40  S.  W.  Rep.  905. 


398 


CRIMINAL    EVIDENCE. 


§334 


ble,  nor  need  a  chemical  analysis,  or  test,  or  a  microscopical 
examination  have  been  made.1 

The  testimony  of  a  witness  that  he  recognized  blood  stains 
on  an  article  which  he  has  seen  is  not  secondary  evidence, 
compared  with  the  opinion  of  a  chemist,  based  solely  on  an 
analysis,2  though  the  opinion  of  the  expert  witness  may  be  re- 
ceived with  more  confidence  in  the  minds  of  the  jury.  Though 
any  witness  may  testify  that  a  stain  looks  like  a  blood  stain, 
only  a  skillful  physician  or  microscopist  should  be  permitted 
to  give  an  opinion,  after  analysis,  on  the  question,  was  the 
stain  in  question  caused  by  the  blood  of  a  human  being  or  by 
that  of  other  animals?3  Evidence  that  there  was  great  effusion 
of  blood  may  be  admissible  to  show  the  nature  of  the  wound.1 
A  fatal  blow  with  a  heavy  blunt  instrument  produces  little 
effusion  of  blood,  while  a  cut  or  stab  with  a  sword  or  knife  will 
cause  an  outpouring  that  may  spatter  with  blood  every  person 
and  object  in  the  vicinity.     Evidence  that  the  clothing  of  the 


People  v.  Gonzalez,  35  N.  Y.  49, 
61;  State  v.  Bradley,  67  Vt.  465,  32 
Atl.  Rep.  238;  State  v.  Welch,  36  W. 
Va.  690,  15  S.  E.  Rep.  419;  Thomas 
v.  State,  67  Ga.  460,  464 ;  McLain  v. 
Com.,  99  Pa.  St.  86,  100;  Greenfield  v. 
People,  85  N.  Y.  75,  83;  Dillard  v. 
State,  58  Miss.  368 ;  People  v.  Deacons, 
109  N.  Y.  374,  382;  People  v.  Smith, 
112  Cal.  333,  39  Pac.  Rep.  40. 

2  People  v.  Gonzalez,  35  N.  Y.  49,  61. 
A  piece  of  board  cut  from  the  floor  of 
a  room  in  which  a  homicide  was  com- 
mitted is  admissible  to  show  the 
stains.  States.  Martin  (S.  Car.,  1896), 
25  S.  E.  Rep.  113. 

3  People  v.  Bell,  49  Cal.  485;  Com. 
v.  Dorsey,  103  Mass.  412,  420 ;  Gaines 
v.  Com.,  50  Pa.  St.  319;  State  v. 
Knight,  43  Me.  11;  Linsday  v.  Peo- 
ple, 6  N.  Y.  143;  State  v.  Miller,  9 
Houst.  564.  In  State  v.  Knight,  43 
Me.  11,  pp.  19-25,  will  be  found  fully 
reported  the  language  of  an  expert 
chemist  who  had  made  a  chemical 
and    microscopical     examination    of 


blood  stains,  detailing  in  full  the 
methods  of  examination,  the  facts  ob- 
served and  the  results  achieved.  Some 
microscopists  affirm  that  it  is  easy  to 
recognize  human  blood  by  the  size 
and  shape  of  the  corpuscles.  The  more 
recent  and,  perhaps,  better  opinion  is, 
that  "while  a  skillful  expert  can, 
with  certainty,  distinguish  between 
human  blood  corpuscles  and  those  of 
the  blood  of  a  cow,  pig  or  other  do- 
mestic animals  with  which  it  would 
be  likely  to  be  confounded,  still,  in  a 
murder  trial,  where  human  life  is  at 
stake,  the  expert  is  hardly  warranted 
to  swear  that  the  blood  stain  is  any 
more  than  that  of  an  animal."  See 
Reese  Med.  Jurisprudence,  p.  132 
(2d  ed.),  1889;  Beale's  Microscope  in 
Medicine,  4th  ed.,  p.  266,  10  Cent. 
Law  Jour.  (Feb.,  1880)  183,  and  the 
remarks  of  the  court  in  pointing  out 
with  what  caution  such  expert  evi- 
dence should  be  received.  State  v. 
Miller,  9  Houst.  (Del.)  564. 
40'Mara  v.  Com.,  75  Pa.  St.  424. 


§  335  homicide.  399 

accused  was  spattered  with  blood  is  relevant,  and  may  justify 
a  strong  inference  that  he  is  guilty.  On  the  other  hand,  the 
absence  of  such  stains  is  not  relevant,  and  usually  would  have 
no  force  as  indicating  innocence.  The  accused  may  have  re- 
moved the  incriminating  marks  or,  even  in  the  case  of  homi- 
cide by  cutting,  may  have  inflicted  the  wound  in  such  a  way 
that  no  blood  was  spattered  on  him. 

The  direction  and  form  of  blood  stains  on  doors,  walls  or 
furniture  is  relevant  to  show  the  position  of  the  deceased  when 
he  was  killed.  So  the  position  of  such  stains  on  the  clothing 
of  deceased  may  be  relevant  to  show  whether  he  was  standing 
or  reclining  when  the  fatal  blow  was  received.1 

§  335.  Conspiracy  to  commit  homicide. — If  the  homicide  is 
the  result  of  a  conspiracy  the  acts  or  declarations  of  any  one  of 
the  conspirators  are  binding  upon  his  criminal  associates  if 
made  during  the  existence  of  the  conspiracy  and  in  further- 
ance of  its  object." 

§  336.  Preparation  to  commit  homicide. — It  may  be  shown 
that  the  accused  was  armed  shortly  before  the  killing  and  pre- 
pared to  do  mischief.3  Such  evidence  is  received  under  the 
general  rule  that  preparation  to  commit   a    crime  is   always 

1  Richardson  v.  State,  7  Tex.  App.  views    and    pointing    out    how   they 

486,492;  Wilson  v.  United  States,  162  might  be  advanced  and  the  purposes 

U.  S.  613,  16   S.   Ct.  895;  Jackson  v.  of  the   society   accomplished   by  the 

Com.  (Ky.,  1897),  38  S.  W.  Rep.  422;  use  of  dynamite    bombs    and    other 

Hinshaw  v.  State  (Ind.,  1897),  47  N.  violent  means,  were  read  and  circu- 

E.  Rep.  157.  lated  by  members  of  the  association 

2 See  §§  492,  493;   States.  McCahill,  and  approved  by  its  officials.     It  was 

72  Iowa  111.     This  rule  is  well  illus-  also  shown  that  the  speakers  of  the  as- 

trated  in  Spies  v.  People,  122  111.  1,  sociation   had,    at  its  meetings,  used 

commonly    called    the    "  Anarchists'  language  inciting  their  hearers  to  as- 

Case."     Here   it  appeared   from    the  sault   policemen   and   to  commit  riot 

evidence   that  an   illegal   association  and  murder.     Upon  murder  resulting 

had  been  formed,  having  for  its  ob-  from  the  conspiracy,  these  written  and 

ject  the   overturning  of  government  spoken  declarations  were  held  binding 

and    the    abolition    of    law.     It  was  upon  all  members  of  the  association, 

proved  that  certain  newspapers  and  a  3  Kernan  v.  State,  65  Md.  253,259. 

book  entitled  the  "Science  of  Revo-  Cf.   Fisher  v.  State,  77   Ind.  42,   45; 

lutionary  Warfare,"  advocating  these  Wood  v.  State,  92  Ind.  269,  274. 


400  CRIMINAL    EVIDENCE.  §  337 

relevant  when  the  commission  of  the  crime  is  in  issue.1  The 
presence  of  the  accused  in  the  locality  of  the  crime,  immedi- 
ately prior  to  its  commission,  may  be  shown.  Bat  this  fact 
possesses  little  value  as  evidence,  unless  coupled  with  a  suspi- 
cious circumstance,  as  his  being  disguised,  or  armed,  or  his  ut- 
tering threats  against  the  deceased.2 

§  337.  Footprints. — A  comparison  of  footprints  proved  to 
have  been  made  by  the  prisoner  with  other  tracks  or  footprints 
found  near  the  scene  of  the  homicide  is  relevant,  if  a  doubt 
arises  on  the  evidence  which  was  the  slayer.8  But  the  ac- 
cused, by  virtue  of  his  constitutional  immunity  against  being 
compelled  to  testify  against  himself,  can  not  be  compelled  to 
make  an  impression  of  his  shoe  or  foot  in  some  soft  substance 
so  that  the  footprints  thus  produced  may  be  compared  with 
others  which  have  been  discovered  in  the  vicinity  of  the  place 
of  the  homicide.4 

§  338.  Self-defense — Burden  of  proof. — In  a  murder  trial 
the  burden  of  proving  the  crime  in  all  its  constituent  elements, 
i.  e.,  the  corpus  delicti  and  the  malicious  intention  is  upon  the 
state  throughout.5  If  the  homicide  is  proved  or  admitted, 
malice  may  be  inferred  from  the  circumstances  already  proved, 
and  it  is  then  incumbent  upon  the  defendant  to  prove  circum- 
stances that  will  excuse,  mitigate  or  justify  the  killing,  unless 
(and  this  exception  is  extremely  important),  the  proof  offered  by 

xThe  accused  can  not  offer  evidence  People,  158  111.  586;  Dillin  v.  People, 

to  show  his  "  uncoinmunicated  inten-  8  Mich.  357;  Murphy   v.  People,  63 

tion"  in  thus  arming  himself.  Dean  N.Y.  590, 595,  596,  and  §  372,  burglary. 
v.  vState,  105  Ala.  21,  17  So.  Rep.  28,        4  Stokes  v.   State,  5  Baxt.    (Tenn.) 

29.     Cf.  Gilcrease  v.  State,  33  Tex.  Cr.  619,  and  see  §372,  where  this  subject 

Rep.  619.  is  fully  discussed. 

2Rodriquez   v.   State,    32  Tex.  Cr.        5  People  v.  Coughlin,  65  Mich.  704,  9 

App.  259,  22  S.  W.  Rep.  978;  State  v.  West  Rep.  129;   State  v.   Porter,   34 

Craemer,  12  Wash.  217,  40  Pac.  Rep.  Iowa  131 ;  State  v.  Wingo,  66  Mo.  181 ; 

944.  State  v.  Donahoe,  78  Iowa  486,  43  N. 

3Bouldin  v.  State,  8  Tex.  App.  332;  W.   Rep.  297;    People  v.  Riordan,  7 

Campbell  v.  State,  23  Ala.  44;   People  N.  Y.  Cr.  R.  7;  State  v.  Allen,  48  La 

v.    McCurdy,  68  Cal.   576;    Stokes   v.  An.  1387,  20  So.  Rep.  1012;  King  v 

State,  5  Baxt.  (Tenn.)  619;  Dunn  v.  State  (Miss.,  1896),  21  So.  Rep.  235. 


§  338a  homicide.  401 

the  state  tends  to  show  the  defendant  was  excused  or  justified.1 
If  circumstances  are  shown  by  the  state  from  which,  when  un- 
contradicted or  proved,  a  presumption  of  malice  is  drawn  by 
the  law,  or  an  inference  may  be  drawn  by  the  jurors,  it  is  con- 
sidered that  the  state  has  satisfied  the  rule  casting  the  burden 
upon  it,  and  that  the  accused,  if  he  wishes  to  exculpate  himsel 
by  a  plea  of  self-defense,  must  prove  the  facts  on  which  his 
plea  is  based,2  perhaps  by  a  preponderance  of  the  evidence.3 

The  rule  as  here  stated  is  perhaps  equivalent  in  meaning  to 
an  instruction  that  the  burden  of  proof  is  upon  the  defendant 
where  he  relies  upon  any  distinct  affirmative  fact  to  exonerate 
him.  Such  an  instruction  has  been  supported  by  numerous 
cases  where  the  fact  relied  on  to  obtain  an  acquittal  was  the 
insanity  of  the  accused,  or  an  assertion  that  the  defendant 
killed  the  deceased  under  a  reasonable  apprehension  that  his 
own  life  was  in  danger.  But  the  qualification  may  always  be 
safely  added  that  the  defendant  need  not  himself  offer  positive 
and  affirmative  evidence  to  sustain  this  burden.  He  should 
receive  the  benefit  of  all  the  evidence  in  the  case,  whether 
offered  by  him  or  by  the  state.  If  any  fact  proved  against 
him  by  the  prosecution  satisfies  the  jury  that  the  killing  was 
excusable  or  justifiable,  the  jury  should  acquit  him.  Any  in- 
struction, whatever  its  language,  which  in  effect  imposes  an  ob- 
ligation upon  the  defendant  of  proving  affirmatively  that  no 
crime  was  committed,  constitutes  reversible  error,  as  it  clearly 
deprives  him  of  the  benefit  of  the  reasonable  doubt  which  may 
arise  on  all  the  evidence.* 

§  338a.  The  alibi  of  the  alleged  victim. — Not  only  must  the 
state  prove  the  death  of  some  human  being,  but  it  must  also 
prove  that  the  identical  human  being  named  in  the  indictment 

People  v.  Tarm  Poi.  86  Cal.  225;  4  Chrisman  v.  State,  54  Ark.  283,  15 

Gibson  v.  State,  89  Ala.  121.  S.  W.  Rep.  889;  People  v.  Downs,  123 

2  Sawyer  v.  People,  91  N.  Y.  667;  N.  Y.  558;  Tweedy  v.  State,  5  Iowa 
State  u.Skidmore,  87  N.  Car.  509.  433 ;  Gravely  v.  State,  38  Neb.871,  874; 

3  State  w.Jones,  20  W.Va.  764;  Hen-  Linehan  v.  State  (Ala.,  1897),  21  So. 
son  v.  State  (Ala.,  1897),  21  So.  Rep.  79.  Rep.  497  ;  State*.  Hatch  (Kan.,  1897), 

26— Cr.  Ev.  46  Pac.  Rep.  708. 


402  CRIMINAL  EVIDENCE.  §  338a 

as  having  been  killed  is  dead  as  the  result  of  some  act  of  the 
accused.  The  fact  that  such  a  person  is  actually  dead  may,  in 
the  large  majority  of  cases,  be  readily  proved  by  the  direct 
evidence  of  those  who  were  his  friends  and  acquaintances  in 
life,  and  who  have  seen  his  corpse.  In  some  exceptional  cases 
such  proof  is  impossible.  The  state  in  proving  the  corpus  de- 
licti and  the  identity  of  the  deceased  will  then  have  to  rely 
upon  circumstantial  evidence  alone.  Such  proof  is  all  that  is 
available  and  necessary  wherever  the  killing  was  procured  or 
was  accompanied  by  methods  which  resulted  in  a  more  or  less 
complete  destruction,  by  fire  or  otherwise,  of  the  body  of  the 
alleged  deceased; '  so  that  all  that  remains  for  purposes  of 
identification  is  a  handful  of  bones  or  a  charred  or  decapitated 
corpse. 

Where  this  happens  the  accused,  while  denying,  and,  per- 
haps, attempting  to  disprove  the  identity  of  the  remains,  also 
frequently  alleges,  directly  or  by  inference,  that  the  alleged 
victim  of  the  homicide  is  alive. 

That  a  man  has  disappeared  suddenly  from  his  accustomed 
haunts  without  having  prepared  for,  or  informed  his  associates 
of,  his  intended  departure  is  by  no  means  proof  that  he  is  dead. 
But  evidence  of  a  sudden  and  unexplained  disappearance  is 
always  admissible  and  may  be  considered  by  the  jury.  If, 
however,  the  state  offers  such  evidence  in  connection  with 
proof  of  the  finding  of  the  alleged  remains  of  the  deceased  in 
such  a  condition  as  to  render  their  identity  in  the  least  doubt- 
ful, it  is  competent  for  the  accused  to  prove  that  the  alleged 
deceased  was  not  killed. 

The  production  of  the  person  in  court,  provided  he  is  prop- 
erly identified,  would,  of  course,  be  conclusive.  This,  how- 
ever, is  seldom  attempted.  Witnesses  are  usually  introduced 
who  testify  that  they  are  acquainted  with  the  deceased,  and 
that  they  have  seen  him  alive  at  a  date  subsequent  to  the 
alleged  killing.  While  there  is  nothing  per  se  suspicious  in 
such  testimony,  experience  teaches  us  that  such  evidence  can 
be  readily  fabricated  without  much  danger  of  detection  or  pun- 

1  See  ante,  §  7. 


«  338a 


HOMICIDE. 


403 


ishment.  But  if,  by  sucli  testimony,  the  accused  shall  succeed 
in  raising  a  reasonable  doubt  of  the  death  of  the  deceased  he 
ought  to  be  acquitted.1 


1  At  the  present  time  (October,  1897) 
two  carious  and  important  cases  are 
pending  in  the  courts  of  New  York 
and  Illinois  which  illustrate  the  prin- 
ciples set  forth  in  the  text.  In  the 
case  of  the  People  v.  Luetgert  (the 
trial  of  which  in  the  city  of  Chicago 
has  but  recently  been  finished),  the 
accused  is  charged  with  killing  his 
wife  and  with  subsequently  attempt- 
ing to  destroy  her  body  by  immersing 
it  in  powerful  chemicals  in  a  vat  in  a 
factory  of  which  he  was  proprietor. 
The  only  proof  of  the  corpus  delicti 
offered  by  the  state  was  a  few  bones, 
or  portions  of  bones,  and  evidence 
that  the  woman  had  unexpectedly  and 
unaccountably  disappeared.  The  ac- 
cused, to  account  for  his  wife's  disap- 
pearance, endeavored  to  show  that  he 
and  she  had  disagreed  and  that  she 
had  deserted  him  for  the  purpose  of 
procuring  a  divorce.  He  also  pro- 
duced witnesses  who  swore,  with 
great  positiveness,  that  they  had  seen 


a  woman,  whom  they  then  identified 
as  the  missing  wife,  alive  since  the 
commission  of  the  crime  charged.  In 
the  New  York  case  a  woman,  named 
Nack,  is  jointly  indicted  with  her 
paramour,  one  Thorn,  for  the  murder 
of  Goldensuppe,  her  discarded  lover. 
The  woman,  it  is  alleged,  lured  the 
deceased  to  a  vacant  house  in  a  lonely 
and  quiet  suburb  of  New  York  city, 
where  he  was  shot  by  Thorn  and  his 
body  cut  into  three  pieces.  The  sev- 
ered portions  of  the  trunk  were  care- 
fully wrapped  in  oil  cloth  and  cast 
into  the  river,  where  they  were  sub- 
sequently found  and  positively  identi- 
fied by  the  associates  of  the  deceased. 
The  head  has  never  been  found.  It 
is  understood  that  the  defense  will  be 
that  Goldensuppe  is  still  alive,  and 
witnesses  are  expected  to  come  from 
Germany  to  prove  that  he  has  been 
seen  there  since  the  date  of  the  al- 
leged killing. 


CHAPTER  XXV. 


CRIMES    AGAINST   THE    PERSON. 


§339.   Abduction— Proving  the   tak-     §350. 
ing   away   or    enticement — 
Corroboration  of  the  prose- 
cutrix. 351. 

340.  Abduction  of  a  minor— Prov- 

ing the  non-consent  of  the 
mother  or  other  guardian.  352. 

341.  Chastity  of  the  female — Pre- 

sumption of  chastity.  353. 

342.  Evidence  to  show   the  age  of 

prosecutrix  —  Belief    of    ac- 
cused as  to  the  female's  age.        354. 

343.  Abduction  for  purposes  of  pros- 

titution or  concubinage. 

344.  Abortion  at  common  law  and        355. 

by  statute  distinguished.  356. 

345.  Intention  to  produce  an  abor- 

tion —  Evidence     of     other 
crimes.  357. 

346.  Victim  of  abortion  is  not  an 

accomplice  —  Corroboration, 

when  required.  358. 

347.  Necessity  for  the  operation — 

Burden  of  proof.  359. 

348.  Declarations   of  present  pain        360. 

and  suffering  and  dying  dec-        361. 
larations  of  the  victim.  362. 

349.  Evidence  of  the  woman's  phys-        363. 

ical  condition  and  illness — 
Direct     and    circumstantial        364. 
evidence  —  Proving    means 
and  instruments  used.  365. 


Expert  testimony  of  physician 
— Evidence  afforded  by  the 
post-mortem. 

Exception  to  rule  regulating 
privileged  communications 
to  physicians. 

Assault  and  battery — Defini- 
tion. 

Evidence  to  show  present  abil- 
ity of  assailant  to  put  his  at- 
tempt in  action. 

Intention  to  do  some  corporeal 
injury  —  Circumstances 
which  are  relevant. 

Evidence  of  other  assaults. 

Assault  with  deadly  weapons — 
Evidence  to  show  character 
of  weapon  used. 

Relevancy  of  evidence  of 
threats  and  previous  hostili- 
ty. 

Robbery  —  Intention  present 
and  force  employed. 

The  crime  of  mayhem. 

Sodomy. 

Criminal  libel  defined. 

The  publication  of  the  libel. 

The  meaning  of  the  language 
used. 

Malicious  intention  in  publish- 
ing. 

Evidence  of  the  truth  as  a  de- 
fense. 


§  339.    Abduction — Proving  the  taking  away  or  enticement — 
Corroboration  of  the  prosecutrix. — In  criminal  law,  the  act  of 

(404) 


§  339 


CRIMES    AGAINST    THE    PERSON. 


I  or, 


taking  away  a  woman  against  her  will,  or,  if  she  is  a  minor, 
against  the  will  of  her  parents  or  some  other  person  having 
lawful  control  over  her,  is  an  abduction.  Whether  abduction 
is  a  crime  in  the  absence  of  statute  is  doubtful.  But  this  is 
now  an  unimportant  question,  as  the  subject  is  almost  univer- 
sally regulated  by  statute.  The  taking  away  or  enticement 
must  be  proved.1  It  need  not  be  proved  that  the  taking  was 
by  force  or  fraud.  It  is  enough  that  persuasion  or  enticement 
was  employed.2  But  evidence  that  force  or  fraud  was  employed 
in  taking  the  female  is  always  relevant.  A  direct  proposal  or 
express  enticement  need  not  be  proved.  Either  may  be  in- 
ferred by  the  jury  from  circumstances,  such  as  the  association 
of  the  prosecutrix  and  the  prisoner,  and  from  the  fact  that  a 
meeting  was  arranged  for  them  by  some  third  person.3  Proof 
of  a  taking  away  for  any  period  or  distance,  however  short,  is 
enough.4 

Sometimes,  as  in  seduction,5  it  is  enacted  that  a  conviction 
can  not  be  had  upon  the  uncorroborated  testimony  of  the  fe- 
male. If  corroborative  evidence  is  required,  it  need  not  be  di- 
rect or  positive,  or  sufficient  alone  to  convict.6  Circumstantial 
evidence  will  suffice.  But  the  corroboration  should  extend  to 
every  material  fact  essential  to  constitute  the  crime  (among 


1  Slocum  v.  People,  90  111.  274,  279. 
Evidence  that  the  accused  merely 
harbored  a  female,  though  for  im- 
moral purposes,  but  in  ignorance  of 
whom  she  was  or  whence  she  came, 
will  not  sustain  a  conviction  of  ab- 
duction. People  v.  Plath,  100  N.  Y. 
590,  594-597. 

2 People  v.  Marshall,  59  Cal.  386, 
388;  People  v.  Demousset,  71  Cal. 
611,  613;  State  v.  Johnson,  115  Mo. 
480;  State  v.  Stone,  106  Mo.  1,  16  S. 
W.  Rep.  890;  State  v.  Keith,  47  Minn. 
559,  561,  50  N.  W.  Rep.  691;  State  v. 
Jamison,  38  Minn.  21,  23;  Wallace  v. 
State  (Ind.,  1897),  47  N.  E.  Rep.  13. 
Amatory  letters,  written  by  the  defen- 
dant, though  without  date,  unsigned 


by  him,  and  not  proved  to  have  been 
in  the  possession  of  the  girl  abducted, 
may  be  proved  against  him  as  his  ad- 
missions. State  v,  Overstreet,  43  Kan. 
299,  23  Pac.  Rep.  572. 

3  People  v.  Carrier,  46  Mich.  442, 
447,  9  N.  W.  Rep.  487 ;  People  v.  Wah 
Lee  Mon,  59  Hun  626,  13  N.  Y.  Supp. 
767;  Huff  v.  Com.  (Ky.,  1896),  37  S. 
W.  Rep.  1046. 

4  Slocum  t'.  People,  90  111.  274,  276; 
State  v.  Stone,  106  Mo.  1,  16  S.  W. 
Rep.  890;  Reg.  v.  Baillie,  8  Cox  C.  C. 
238. 

5  See  §§  389,  390. 

6State  v.  Keith,  47  Minn.  559,  562; 
Minn.  Penal  Code,  §241. 


406  CRIMINAL  EVIDENCE.  §  340 

which  the  taking  away  is  most  important),  and  the  criminal 
intent  and  identity  of  the  abductor.1 

§  340.  Abduction  of  a  minor— Proof  of  the  non-consent  of 
the  mother  or  other  guardian. — If  the  female  abducted  is  a 
minor,  the  burden  is  on  the  state  to  prove  the  non-consent  of 
the  parent  or  guardian.  The  latter  may  testify  that  the  taking 
was  without  his  or  her  consent,2  and  perhaps  on  this  point  he 
is  an  indispensable  witness.3  It  is  no  defense  to  prove  that  the 
taking  was  without  force,  and  with  the  consent  of  the  minor.* 

§  341.    Chastity  of  the  female — Presumption  of  chastity. — 

Where  the  statute  provides  a  punishment  for  the  abduction  of 
any  or  every  female,  evidence  of  her  chastity,  or  the  reverse,  is 
irrelevant.5  It  is  otherwise  if  the  statute  refers  to  the  taking 
away  of  a  female  of  chaste  repute  or  character,6  and  then  a 
single  act  of  illicit  intercourse  may  be  proved.7 

Upon  the  question  whether  the  previous  chastity  of  the 
prosecutrix  will  be  presumed,  or  whether  the  state  will  have  to 
prove  it,  as  an  essential  element  of  its  case,  the  authorities  are 
divided.  Some  of  the  cases,  basing  their  reasoning  upon  the 
almost  universal  prevalence  of  female  chastity  admitted  to  ex- 
ist in  modern  civilized  society,  maintain  that  it  is  a  presump- 
tion of  law  that  she  is  chaste,8  and  cast  the  burden  of  proving 
her  lack  of  chastity  on  the  accused. 

1  People  v.  Plath,  100  N.  Y.  590,  593,  4  State  v.  Stone,  106  Mo.  1,  7 ;  State 
594;  1  Cent.  Rep.  772;  State  v.  Keith,  v.  Bobbst,  131  Mo.  328,  32  S.  W.  Rep. 
47  Minn.  559,  562.  See,  also,  cases  cited     1149. 

in  §§389,390,  post.     In  the  absence        5  People  v.  Demousset,  71  Cal.  611, 

of  statute,  corroboration  is  unneces-  612,  614,  12  Pac.  Rep.   788;    State  v. 

sary.     State  v.   Stone,   106  Mo.  1,  16  Johnson,  115  Mo.  480,  492,  22  S.  W. 

S.  W.  Rep.  890.  Rep.  463;  State  v.  Gibson,  111  Mo.  92, 

2  Scruggs  v.  State,  90  Tenn.  81, 15  S.  19  S.  W.  Rep.  980;  Scruggs  v.  State, 
W.  Rep,  1074;  State  v.  Stone,  106  Mo.  90  Tenn.  81,  15  S.  W.  Rep.  1074;  State 
1,  7.  v.  Bobbst,  131  Mo.  328,  32  S.  W.  Rep. 

3  It  would  seem  by  analogy  that  the  1149,  1150. 

evidence  of  the  person  whose  consent  6  Brown  v.    State,  72  Md.  468,476, 

was  not  given  is  primary  evidence  of  20  Atl.  Rep.  186;  People  v.  Roclerigas, 

non-consent,  as  in  larceny,  where  the  49  Cal.  9. 

owner  of  the  goods  must  be  called  to  7  Lyons  v.  State,  52  Ind.  426,  427. 

prove  non-consent.  8  Andre  v.  State,  5  Iowa  389;  State 


§  342  CRIMES  AGAINST  THE  PERSON.  407 

It  has  also  been  held  that  no  presumption  exists  either  way, 
but  that,  in  view  of  the  presumed  innocence  of  the  accused, 
the  state  must,  in  the  first  instance,  introduce  some  evidence  of 
chastity.1  The  evidence  of  the  unchastity  of  the  prosecutrix 
must  be  confined  to  her  conduct,  or  reputation,  prior  to  the  ab- 
duction by  which  she  has  been  corrupted.2  But  evidence  that 
after  the  taking  away  she  had  sexual  intercourse  with  the  ac- 
cused is  receivable  to  show  his  intent.3  Evidence  that  the 
mother,  or  other  female  relative  of  the  prosecutrix,  had  been 
addicted  to  lewdness,4  or  that  she  had,  when  a  child,  lived 
with  a  prostitute,5  is  inadmissible  as  being  too  remote. 

§  342.    Evidence  to  show  age  of  prosecutrix. — The  age  of  a 

prosecuting  witness  alleged  to  be  under  the  age  of  consent  may 
be  proved  by  her  own  testimony.6  Her  evidence  is  primary 
and  original,  though  her  knowledge  is  based  solely  on  what  her 
parents  have  told  her,7  and  though  the  fact  is  also  recorded. 
A  non-expert  witness  may  testify  to  the  age  of  a  person  seen 
out  of  court.  He  should  be  asked  to  describe  the  person's 
dress  and  appearance,  and  he  may  then  state  his  opinion  as  to 
his  or  her  age.8  He  may  then  be  asked,  as  a  test,  to  give  his 
opinion  of  the  age  of  a  bystander,  the  latter  being  called  to 
state  his  own  age  in  rebuttal.9  In  criminal  trials,  family 
reputation  as  to  age  has  been  held  inadmissible  as  being  hear- 
say.10   Whether  the  age  of  a  witness  can  be  determined  by  the 

v.    Higdon,   32   Iowa  262;   People  v.  5  Brown  v.   State,  72  Md.  468,  480, 

Brewer,  27  Mich.  134;    Bradshaw  v.  20  Atl.  Rep.  186. 

People,  153  111.  156,  38  N.  E.  Rep.  652;  6  Bain  v.  State,  61  Ala.  75;  Com.  v. 

Slocum  v.  People,  90  111.  274.  Stevenson,  142  Mass.  466,  468;  Mason 

1  Com.  v.  Whittaker,  131  Mass.  224,  v.  State,  29  Tex.  App.  24,  14  S.  W. 
225.     See,  also,  §§  392,  393.  Rep.  71 . 

2  Scruggs  v.  State,  90  Tenn.  81,  85,  7  Cherry  v.  State,  68  Ala.  29,  31. 
15  S.  VV.  Rep.  1074;  Slocum  v.  People,  Underhill  on  Ev.,  p.  74. 

90  111.274,281.  8Com.   v.   O'Brien,    134  Mass.  198, 

3  Henderson  v.  People,  124  111.  607,  200;  Carr  v.  State,  24  Tex.  App.  562; 
614,  17  N.  E.  Rep.  68;  State  v.  John-  State  v.  Douglass,  48  Mo.  App.  39,  41 ; 
son,  115  Mo.  480,  495,  22  S.  W.  Rep.  Marshall  v.  State,  49  Ala.  21 ;  Under- 
463.  hill  on  Ev.,  p.  269. 

4  Scruggs  v.  State,  90  Tenn.  81,  86,  9  Louisville,  etc.,  Co.  v.  Falvey,  104 
15  S.  W.  Rep.  1074.  Ind.  409. 

10  Rex  v.  Wedge,  5  C.  &  P.  298. 


408 


CRIMINAL    EVIDENCE. 


§   343 


jury  solely  from  his  personal  appearance  has  been  variously 
decided.  Some  cases  hold  that  his  personal  appearance,  aside 
from  direct  oral  or  written  proof,  is  competent  to  go  to  the 
jury,1  while  others  support  the  contrary  proposition.2  But 
evidence  is  not  admissible  to  show  that  the  defendant  was 
ignorant  of  the  age  of  the  female,  or  that  he  believed  or  had 
good  reason  to  believe  that  she  was  over  the  age  of  consent.3 

§  343.  Abduction  for  purposes  of  prostitution  or  concubi- 
nage.— When  a  statute  provides  that  the  taking  must  have  been 
for  purposes  of  prostitution,  the  evidence  must  show  beyond  a 
reasonable  doubt  that  the  accused  intended  to  cause  the  female 
to  enter  upon  a  life  of  indiscriminate  sexual  intercourse.4  It  is 
not  enough  to  show  that  he,5  or  some  third  person,  intended  to 
have  intercourse  with  her  occasionally.6  Direct  evidence  that 
the  accused  intended  to  devote  his  victim  to  purposes  of  pros- 
titution is  not  required.  This  intent  may  be  inferred  from 
evidence  that  the  woman  was  taken  from  her  home  by  a  pros- 
titute and  her  companion  directly  to  a  house  of  prostitution,7 


'Com.  v.  Emmons,  98  Mass.  6;  Peo- 
ple v.  Special  Sessions,  10  Hun  (N.  Y.) 
224. 

2  Stephenson  v.  State,  28  Ind.  272; 
State  v.  Arnold,  13  Ired.  184;  Bird  v. 
State,  104  Ind.  384.  See  "Inspection," 
Underbill  on  Ev.,  pp.  492-495. 

3  People  ».  Dolan,  96  Cal.  315 ;  State 
v.  Johnson,  115  Mo.  480,  494,  22  S. 
W.  Rep.  463;  Riley  v.  State  (Miss., 
1896),  18  So.  Rep.  117;  but  cf.  contra, 
Mason  v.  State,  29  Tex.  App.  24,  14 
S.  W.  Rep.  71,  and  State  v.  Houx,  109 
Mo.  654;  Lawrence  v.  Com  ,  30  Gratt. 
(Va.)  845;  State  v.  Newton,  44  Iowa 
45. 

4 The  intention  to  have  sexual  in- 
tercourse may  be  inferred  from  the 
making  of  a  proposition  for  it,  or  from 
an  attempt  to  procure  it  by  force. 
Huff  v.   Com.    (Ky.,   1897),  37  S.  W. 


Rep.  1046.  It  is  not  material  to  prove 
the  actual  accomplishment  of  the  pur- 
pose of  the  accused  in  this  respect. 
State  v.  Bobbst,  131  Mo.  328,  32  S.  W. 
Rep.  1149,  1151. 

5  State  v.  Gibson,  111  Mo.  92,  19 
S.  W.  Rep.  980,  982;  Osborn  v.  State, 
52  Ind.  526,  528 ;  State  v.  Stoyell,  54 
Me.  24,  27 ;  State  v.  Ruhl,  8  Iowa  447 ; 
United  States  v.  Zes  Cloya,  35  Fed. 
Rep.  493;  State  v.  Jamison,  38  Minn. 
21,  23;  Haygood  ».  State,  98  Ala.  61, 
13  So.  Rep.  325;  Hendersons.  People, 
124  111.  607, 612 ;  State  V.Wilkinson,  121 
Mo.  485,  486. 

6  People  v.  Marshall,  59  Cal.  386, 
388;  State  v.  McCrum,  38  Minn.  154, 
155. 

7  People  v.  Carrier,  46  Mich.  442, 447, 
9  N.  W.  Rep.  487,  or  subsequently 
State  v.  Johnson,  115  Mo.  480,  495. 


§  344  CRIMES    AGAINST   THE    PERSON.  409 

and  from  evidence  that,  prior  to  the  abduction,  illicit  relations 
had  existed  between  the  parties.1 

Some  statutes  provide  for  the  punishment  of  abduction  for 
purposes  of  concubinage  as  well  as  prostitution.  Concubinage 
may  be  defined  as  the  informal  and  illicit  cohabitation  of  a 
man  and  woman  as  husband  and  wife  without  being  such. 
Proof  of  a  single  act  of  sexual  intercourse  is  enough  when  the 
other  material  elements  of  the  crime  are  proved.2  No  length 
of  time  or  long  continuance  of  illicit  intercourse  is  necessary. 
The  concubinage  exists  as  soon  as  the  single  woman  consents  to 
unlawfully  cohabit  with  a  man  generally,  as  though  the  mar- 
riage relation  existed  between  them,  without  any  limit  as  to 
the  duration  of  such  intercourse  and  actually  commences  such 
cohabitation.3 

§  344.    Abortion  at  common  law  and  by  statute  distinguished. 

— It  was  not  a  crime  at  common  law  to  operate  upon  a  preg- 
nant woman  for  the  purpose  of  procuring  an  abortion  unless 
she  were  actually  quick  with  child.  So,  anciently,  if  a  woman 
quick  with  child  killed  it  herself,  or  was  beaten  so  that  she  was 
delivered  of  a  dead  child,  it  was  not  murder.4  The  same  prin- 
ciple applied  when  the  acts  with  an  intention  to  produce  an 
abortion  were  by  another.  Even  when  the  mother  died  as  a 
result  of  an  attempt  to  procure  an  abortion,  the  killing  was  not 
regarded  as  murder,  for  the  death  was  collateral,  and  aside 
from  the  principal  design  and  the  procurement  of  the  abortion 
was  not  a  felony.  These  rules  are  now  generally  changed  by 
statute.  It  is  now  equally  criminal  to  produce  abortion  before 
and  after  quickening,  and  if  the  statute,  as  is  usually  the  case, 
makes  an  abortion  a  felony,  then  the  death  of  the  woman  as  a 
result  of  the  subordinate  crime  is  murder.5 

1  State  v.  Gibson,  111  Mo.  92,  19  4  Smith  v.  State,  33  Me.  48,  53-60. 
S.  W.  Rep.  980,  982;  State  v.  Gibson  See  this  case  for  a  thorough  discussion 
(Mo.,  1896),  18  S.  W.  Rep.  1109,  1110;  of  the  meaning  of  miscarriage.  See, 
State  v.  Overstreet.  43  Kan.  299,  23  also.  State  v.  Cooper,  22  N.  J.  L.  52- 
Pac.  Rep.  572.  58;  Mitchell  v.  Com.,  78  Ky.  204-210; 

2  Henderson  r.  People,  124  111.  607,  Com.  v.  Surles,  165  Mass.  59. 

17  N.  E.  Rep.  68.  5  Slattery  v.  People,  76  111.  217,  220. 

3  3  Inst.  50,  1  Hale  P.  C.  433. 


410  CRIMINAL  EVIDENCE.  §  345 

§  345.  Intention  to  produce  an  abortion — Evidence  of  other 
crimes. — An  abortionary  intent  must  be  proved.  Evidence  of 
an  assault  or  beating  alone  is  not  enough,  though  a  miscar- 
riage actually  should  ensue  as  a  result  thereof.1  If  an  intention 
to  produce  an  abortion  is  shown,  it  is  immaterial  that  the  means 
employed  did  not  and  could  not  have  produced  the  result 
intended.2  Evidence  that  the  accused  prior,3  or  subsequently, 
to  the  act  alleged,  had  attempted  to  procure  an  abortion  on  the 
same  woman,  using  the  same  or  different  means,  or  that  on 
other  occasions  he  had  operated  on  other  women,4  is  always 
admissible  to  show  his  purpose  and  intention  in  connection 
with  the  act  charged.5 

§  346.  Yictini  of  abortion  is  not  an  accomplice — Corrobora- 
tion when  required. — The  woman  on  whom  an  abortion  is  per- 
formed is  not  an  accomplice,6  as  she  can  not  be  indicted  for 
the  same  offense  as  the  accused.  But  the  fact  that,  from  a 
moral  point  of  view,  she  is  implicated  in  the  crime  may  be 
considered  by  the  jury  as  bearing  on  her  credibility.7  A  per- 
son is  not  an  accomplice  who  procures  an  ana3sthetic  which  is 
administered  to  the  victim,  if  it  is  not  shown  that  he  knew  the 
purpose  for  which  it  was  used.8  Nor  is  a  woman  an  accom- 
plice, who,  being  an  intimate  friend  and  confidant  of  the 
deceased,  knew  of  her  pregnancy  and  her  desire  for  relief, 
and  accompanied  her  to  the  .  defendant's  house,  when  she 
did  not  aid  or  advise  the  defendant,  and  was  not  present 
when  the  crime  was  committed.9  Because  of  the  confidential 
and  secret  character  of  the  relations  existing  between  physi- 

1  State  v.  Fitzgerald,  49  Iowa  260,  85,  93;  Com.  v.  Boynton,  116  Mass. 

262.  343,    345;    Com.    v.    Follansbee,    155 

2Com.  t>.  Corkin,  136  Mass.  429,  430;  Mass.  274,   277,  29   N.   E.   Rep.  471; 

People  v.  Seaman  (Mich.,  1896),  65  N.  Dunn  v.  People,  29  N.  Y.   523,  527; 

W.  Rep.  203.  State  v.  Vedder,  98  N.  Y.  630,    632; 

3  Com.  v.  Brown,  14  Gray  419,  432.  6  Rex  v.  Hargrave,  5  C.  &  P.  170. 

4  Lamb  v.  State,  66  Md.  285,  287,  67  7Com.  v.  Wood,   supra;  Watson  v. 
Md.  524;  Scott  v.  People,  141  111.  195,  State,  9  Tex.  App.  237,  245. 

213,   30  N.   E.   Rep.   329.     See,  also,  8  Com.  v.  Follansbee,  supra. 

Underhill  on  Ev.,  §§  9,  10.  9  People  v.  McGonegal,  42  N.  Y.  St. 

5  State  v.  Smith  (Iowa,  1897),  68  N.  Rep.  307,  314,  62  Hun  622,  136  N.  Y. 
W.  Rep.  428;  Com.  v.  Wood,  11  Gray  62,  76. 


§  347  CRIMES    AGAINST    THE    PERSON.  411 

cians  and  their  female  patients,  and,  also,  on  account  of  the 
great  danger  to  which  physicians  would  be  exposed  if  an 
accusation  of  the  crime  of  abortion  committed  on  a  patient 
could  be  sustained  by  the  uncorroborated  statement  of  the 
latter,  it  has  been  enacted  by  statute  that  a  physician  shall 
not  be  arrested,  indicted  or  convicted  of  abortion  on  the 
testimony  of  the  woman  alone.  Her  testimony  must  be  cor- 
roborated in  respect  to  some  material  facts  which  constitute  a 
necessary  element  in  the  crime,  as,  for  example,  the  use  of  an 
instrument  and  the  intent.1 

Very  frequently  several  defendants  are  jointly  indicted  lor 
the  abortion.  In  such  a  case  the  criminal  liability  is  several 
as  well  as  joint,  and  one  defendant  may  be  convicted  and  the 
other  acquitted.  Hence,  criminatory  evidence  may  be  received 
against  either,  though  the  state  shall  fail  to  connect  the  other 
with  it.2 

§  347.    Necessity  for  the    operation — Burden   of   proof. — 

Whether  the  abortion  was  necessary  to  save  life  is  a  question 
for  the  jury  to  determine,  principally  upon  the  facts  involved 
in  the  victim's  illness.  The  opinion  evidence  of  physicians 
to  its  necessity,  though  desirable,  is  not  indispensable.3  The 
burden  of  establishing  that  the  abortion  was  actually  neces- 
sary,4 or  that  the  accused  was  advised5  it  was  necessary,  is  on 
him  as  facts  peculiarly  within  his  own  knowledge.6  He  need 
not  establish  its  necessity  beyond  a  reasonable  doubt.7 

§  348.  Declarations  of  present  pain  and  suffering  and  dying 
declarations  by  the  victim. — The  declarations  of  the  victim  are 
not  generally  admissible  unless  they  are  so  far  contemporane- 
ous with  and  explanatory  of  an  act  or  transaction  already  in 

People  v.  Josselyn,   39  Cal.   393,  5  Hatchard  v.  State,  79  Wis.  857. 

398.                                           .  6Tbat  the  accused  thought  the  op- 

2 Baker  v.  People,  105  111.  452,  456.  eration  was  necessary  is  irrelevant. 

3  Hatchard  v.  State,  79  Wis.  357, 361.  Hatchard  v.  State,  supra. 

4  People  v.  McGonegal,  42  N.  Y.  St.  7  State  v.  Stevenson,  68  Vt.  529,  35 
Rep.  307,  313,  but  cf.  contra,  State  v.  Atl.  Rep.  470;  State  v.  McCoy  (Utah, 
Clements,  15  Ore.  237,  246-249,  citing  1897),  49  Pac.  Rep.  420;  State  v.  Lee 
1  Greenl.,  §  78.  (Conn.,  1897),  37  Atl.  Rep.  85. 


412 


CRIMINAL    EVIDENCE}. 


§349 


evidence  that  they  may  be  received  as  a  part  of  the  res  gestse,1 
or  unless  they  consist  of  exclamations  or  ejaculations  of  pres- 
ent suffering  uttered  during  the  lying-in.2  If  the  woman  not 
only  consents  to  the  operation,  but  actually  seeks  and  adopts 
means  in  furtherance  of  it,  her  declarations  may  be  admitted 
against  the  accused  as  the  declarations  of  a  fellow-conspirator 
made  to  promote  the  common  design.3  The  fact  that  the  vic- 
tim is  dead  does  not  admit  her  declarations.  They  will  not  be 
received  as  dying  declarations,  though  possessing  all  the  char- 
acteristics which  would  admit  them  in  a  trial  for  homicide.4 

§  349.  Evidence  of  the  woman's  physical  condition  and  ill- 
ness— Direct  and  circumstantial  evidence. — The  evidence  will 
be  permitted  to  take  a  wide  range.  Facts  elicited  by  a  post- 
mortem are  always  admissible  to  prove  the  corpus  delicti.  But 
evidence  of  the  victim's  pregnancy,  her  medical  treatment,5 
and  her  physical  condition,  her  health  and  spirits,6  and  her 
relations,  including  acts  of  sexual  intercourse7  with  the  defen- 


1  Scott  v.  People,  141  111.  195,  214; 
State  v.  Gedicke,  43  N.  J.  L.  86,  89; 
Com.  v.  Leach,  156  Mass.  99,  101,  30 
N.  E.  Rep.  163. 

2  People  v.  Aikin,  68  Mich.  460,  475 ; 
Rhodes  v.  State,  128  Ind.  189,  191,  27 
N.  E.  Rep.  866.  "These  declarations 
were  made  by  her  to  the  physician  at 
the  time  he  was  called  as  an  expert  to 
determine  her  health,  and  were  state- 
ments of  her  bodily  feelings  and  the 
symptoms  of  her  supposed  pregnancy. 
This  evidence  was  admissible  from  the 
necessity  of  learning  from  the  patient 
herself  facts  within  her  own  knowl- 
edge which  the  physician  should  know 
to  form  an  intelligent  and  accurate 
opinion  of  her  present  health  and 
situation.  The  usual  symptoms  of 
pregnancy  in  its  early  stage  must  be 
obtained  from  the  patient  herself,  such 
as  the  obstruction  of  the  usual  course 
of  nature,   morning  sickness,    head- 


ache, nervousness  and  other  indica- 
tions hidden  from  the  observation  of 
others."  State  v.  Gedicke,  43  N.  J. 
L.  86,  89;  People  v.  Aikin,  66  Mich. 
460,  475;  Hays  v.  State,  40  Md.  633, 
651. 

3  Solander  v.  People,  2  Colo.  48,  62- 
64. 

4Underhill  on  Ev.,  p.  141.  See, 
also,  §  106.  In  Massachusetts,  by  St. 
1889,  c.  100.  dying  declarations  are 
admissible.  Com.  v.  Homer,  153  Mass. 
343,  344.  And  other  declarations  are 
received  to  show  that  the  former  were 
made  under  a  sense  of  impending 
death.  Com.  v.  Cooper,  5  Allen  495, 
497;  Com.  v.Trefethen,  157  Mass.  180, 
184-188;  Com.  v.  Thompson,  159  Mass. 
56,  59. 

5  People  v.  Aikin,  66  Mich.  460,  474. 

6  Com.  v.  Wood,  11  Gray  85,  91; 
Hays  v.  State,  40  Md.  633. 

'Scott  v.  People,  141   111.  195,  211. 


§  349  CRIMES    AGAINST    THE    PERSON.  413 

dant  subsequent  to  the  date  of  the  alleged   abortion,  is  always 
admissible.1 

It  need  not  be  shown  that  the  defendant  knew  the  woman 
was  pregnant.  If  the  intent  to  produce  a  miscarriage  is  pres- 
ent, it  is  enough  that  the  defendant  may  only  have  had  a 
mere  suspicion  that  pregnancy  existed.2  But  evidence  that 
the  defendant  had  or  had  not  a  knowledge  of  the  woman's 
pregnancy  is  relevant  to  support  or  to  rebut  a  presumption  of 
an  abortionary  intention.3  Evidence  that  the  defendant  ad- 
vertised he  would  procure  abortions,4  that  several  months 
prior  to  the  alleged  offense  lie  had  articles  in  his  possession 
which  he  knew  were  calculated  to  produce  an  abortion,5  that 
he  supplied  the  woman  with  the  means  of  producing  an  abor- 
tion and  gave  her  minute  directions  how  those  means  were 
to  be  employed,6  is  admissible.  Direct  evidence  that  the  de- 
fendant committed  the  crime  is  not  demanded.  He  may  be 
convicted  on  circumstantial  evidence  alone,7  if  it  is  sufficient 
to  convince  the  jury  beyond  a  reasonable  doubt  that  the  woman 
was  pregnant/  raid  that  drugs  or  instruments  were  used  on  her 
by  the  defendant  with  a  criminal  intent.9  But  a  conviction  of  hav- 
ing in  one's  possession  instruments  intended  to  cause  an  abor- 
tion can  not  be  sustained  by  proof  of  the  possession  of  an  in- 
strument which,  though  often  used  for  that  purpose,  was  made 
and  designed  for  a  different  one.10 

'Com.  v.  Follansbee,  155  Mass.  274,  5Com.  v.  Blair,   126  Mass.  40,  42; 

277,  29  N.  E.  Rep.  471.     In  People  v.  People  v.  Vedder,  98  N.  Y.  630. 

Aikin,  66  Mich.  460,  it  is  said,  "  a  his-  6  Jones  v.  State,  70  Md.  326,  327,  17 

tory  of  her  illness  from  the  very  begin-  Atl.  Rep.  89. 

ning  to  the  end   in  detail  was  most  7  See  §  5. 

proper    and    perfectly    legitimate    to  8  State  v.  Stewart,  52  Iowa  284,  286. 

prove  the  corpus  delicti,  and  what  de-  9Com.  v.  Leach,  156  Mass.  99,  102; 

fendant  did  and  said  in   connection  Clarke  v.  People,  16  Colo.  511  ;  State 

therewith  while  in  the  house  attend-  v.    Stewart,   52    Iowa    284;    Com.   v. 

ingher  was  properly  admitted."  Adams,  127  Mass.  15,  19. 

2Powe  v.  State,  48  N.  J.  E.  34,36.  "State  v.   Forsythe,  78  Iowa  595, 

3  Scott  v.  People,  141  111.  195,211;  597,  43  N.  W.  Rep.  548.  Evidence 
State  v.  McLeod,  136  Mo.  109,  37  S.  that  articles  adapted  to  procure  an 
W.  Rep.  828.  abortion  were  found  in  the  abode  of 

4  Weed  v.  People,  3  Thomp.  &  C.  the  defendant  is  admissible.  Com.  v. 
(N.  Y.)  50.  Tibbetts,  157   Mass.   519,   521.     It  is 


414 


CRIMINAL    EVIDENCE. 


§  350 


§  350.  Expert  testimony  of  physicians — Evidence  afforded 
by  the  post-mortem. — A  physician,  if  properly  qualified,  may, 
it  seems,  testify  to  the  time  required  to  produce  an  abortion,1 
that  in  his  opinion  an  abortion  had  been  procured,2  and  that 
death  had  resulted  therefrom,8  that  traces  of  an  abortion  would 
remain  if  one  had  been  committed  or  attempted,4  and  that  cer- 
tain drugs,5  or  instruments,6  which  the  jury  maybe  permitted 
to  inspect,  were  popularly  supposed7  to  be  calculated  to  pro- 
duce an  abortion.  While  a  physician  who  made  a  post-mortem 
examination  is  undoubtedly  a  competent  witness  to  any  of  the 
above  matters,8  his  is  not  the  best  nor  only  proper  evidence  and 
any  competent  medical  man  may  testify.  The  expert  may 
testify  that  it  is  impossible  for  any  woman  unaided  to  have 
produced  an  abortion  upon  herself  by  the  use  of  a  certain  in- 
strument. Then  under  the  rule  that  where  an  opinion  has 
been  given  that,  in  the  nature  of  things,  a  certain  thing  is  im- 
possible, a  woman  may  testify  that  she  has  used  such  an  article 
upon  herself  for  a  legitimate  purpose.9  To  explain  and  empha- 
size his  evidence  the  physician  who  made  the  pcst-mortem  may 
exhibit  parts  of  the  body  preserved  in  spirits  to  the  jury.10 

§351.  Exception  to  rule  regulating  privileged  communica- 
tions to  physician. — The  question   may  arise  are  communica- 


not  necessary  to  prove  that  the  de- 
fendant used  all  the  instruments  al- 
leged in  the  indictment.  It  is  enough 
to  prove  that  one  of  them  was  used. 
Scott  v.  People,  141  111.  195,  210;  Reg. 
v.  Phillips,  3  Camp.  73;  Reg.  v.  Coe,  6 
C.  &  P.  403;  Moore  v.  State  (Tex., 
1897),  40  S.  W.  Rep.  287. 

1  People  v.  McGonegal,  136  N.  Y.  62, 
75. 

2Hauk  v.  State  (Ind.,  1897),  46  N. 
E.  Rep.  127;  Com.  v.  Thompson,  159 
Mass.  56,  33  N.  E.  Rep.  1111 ;  State  v. 
Wood,  53  N.  H.  484. 

3  Com.u.  Thompson,  159  Mass.  56, 59. 

4Bathrick  v.  Detroit,  etc.,  Co.,  50 
Mich.  629. 


5  Williams  v.  State  (Tex.,  1892),  19 
S.  W.  Rep.  897. 

6  Com.  v.  Brown,  121  Mass.  69,81. 
'Carter  v.   State,   2   Ind.  617,   618, 

624,  625. 

8  People  v.  Sessions,  58  Mich.  594, 
26  N.  W.  Rep.  291. 

9  Com.  v.  Leach,  156  Mass.  99,  102- 
107,  Knowlton,  J.,  dissenting.  The 
expert  should  be  interrogated  upon 
hypothetical  questions  containing 
facts  proved  or  which  may  he  assumed 
to  be  proved.  He  can  not  be  asked  if 
he  has  read  or  heard  the  testimony, 
and  to  give  his  opinion  thereon.  Peo- 
ple v.  Aikin,  66  Mich.  460, 476, 33 N. W. 
Rep.  821. 

10  Com.  v.  Brown,  14  Gray  419,  431. 


§352  CRIMES    A.GAINST    THE    PERSON.  415 

tions  made  to  a  physician  by  the  victim  of  an  abortion  privi- 
leged so  that  the  physician  may  decline  to  disclose  them?  It 
is  well  settled  that  the  statutory  privilege  can  not  be  invoked 
for  the  sole  purpose  of  shielding  a  criminal.  And  though  the 
accused,  being  a  physician,  may  refuse  to  testify  at  all,  yet,  if 
he  go  on  the  stand,  he  can  not  claim  the  professional  privi- 
lege. A  distinction  is  made  by  the  cases  as  regards  the  testi- 
mony >of  a  physician  who  has  treated  the  woman  after  the 
commission  of  the  alleged  crime.  If  she  is  living  the  law  for- 
bids the  physician  to  disclose  any  fact  that  he  may  have 
learned  while  attending  her  professionally,  for  the  reason  that 
his  statement  inevitably  tends  to  convict  her  of  a  crime  and  to 
discredit  and  disgrace  her.1  If,  however,  the  woman  is  dead 
this  evidence  can  not  incriminate  her,  though  it  may  disgrace 
her  memory,  and  on  this  account  the  physician  may  speak.2 
And,  generally,  a  physician  who  was  consulted  as  to  the  best 
mode  of  procuring  an  abortion  may  state  what  was  said  and 
done,3 

§  352.  Assault  and  battery — Definition. — An  assault  has 
been  defined  as  "any  attempt  or  offer,  with  force  or  violence, 
to  do  a  corporal  hurt  to  another,  whether  wTantonly  or  with  a 
malicious  intention,  with  such  circumstances  as  denote  an  in- 
tention to  do  it  at  the  time,  coupled  with  a  present  ability  to 
carry  that  intention  into  execution."4  An  assault  is  involved 
in  the  procurement  of  an  abortion,  a  rape,  a  robbery  and  all 
crimes  against  the  person.  But  usually  the  word  assault  is 
employed  in  connection  with  the  word  battery.     The  battery  is 

People  v.   Murphy,  101  N.  Y.  126,  the  court  says:    "  It  is  as  if  a  person 

129.     In  this  case  the  public  prosecu-  strike   at  another  with  his  hands,  or 

tor  sent  a  physician  to  make  an  ex-  with  a  stick  and  misses  him.     If  the 

amination  of  the  woman,  to  which  she  other  be  stricken  it  is  a  battery,  which 

voluntarily  submitted.  is  an  offense  of  a  higher  grade.   Or,  if 

zPierson  ».  People,  79  N.-  Y.  424.  he  shake  his  fist  at  another,  or  present 

3  Babcock  v.  People,  15  Hun  (N.  Y.)  a  gun  or  other  weapon  within  such  a 

347,  3o4.     See,  ante,  §  174.  distance  that  a  hurt  might  be  given; 

4Roscoe   Or.  Ev.,  p.  304;Tarverv.  or  drawing  a  sword  and  brandishing 

State,   43   Ala.   354,  356.     In  United  it  in  a  menacing  manner." 
States  v.  Hand,  2  Wash.  C.  C.  435,  437, 


416 


CRIMINAL    EVIDENCE. 


§353 


merely  the  successful  termination  of  the  assault.  The  assault 
is  the  beginning  of  a  crime  the  motive  of  which  is  the  inflic- 
tion of  some  corporal  hurt  upon  another  without  that  person's 
consent,  as  for  example  an  assault  with  intent  to  commit  rape. 
As  soon  as  the  person  assaulted  is  touched,  no  matter  how 
trifling  the  hurt  or  touch  may  be,  the  battery  has  been  com- 
mitted.1 

§  353.  Evidence  to  show  present  ability  of  assailant  to  put 
his  attempt  in  action. — Evidence  that  the  accused  did  not,  at 
the  instant  of  the  assault,  possess  the  ability  to  carry  out  his 
attempt  to  injure,  is  always  relevant  to  excuse  him.  If  he  can 
show  that  he  was  not  able  to  do  the  violent  or  injurious  act 
which  he  was  threatening,  there  is  no  assault.2  Accordingly, 
evidence  is  relevant  to  show  that  the  accused  was  at  such  a 
distance  that  an  immediate  contact  was  impossible,  as  when  he 
threatened  one  with  an  ax,  at  a  distance  of  twenty-five  feet,3  or 
pointed  a  gun  at  a  person  who  was  not  in  carrying  distance,4 
or  pointed  an  unloaded  gun  or  pistol  at  a  person.5  Some  cases, 
however,  hold  that  the  physical  ability  of  the  accused  to  carry 
out  his  threats  or  menacing  motions  is  irrelevant.     In  such 


Alston  v.  State,  109  Ala.  51,  20  So. 
Rep.  81 ;  Lawson  w.  State,  30  Ala.  14, 
15 ;  Hill  v.  State  (Tex.,  1897),  39  S.  W. 
Rep.  666. 

2  Klein  v.  State,  9  Ind.  App.  365,  368 ; 
People  v.  Yslas,  27  Cal.  630,  635; 
Thomas  v.  State  (Ga.,  1897),  26  S.  E. 
Rep.  748 ;  Smith  v.  State,  39  Miss.  521 ; 
Mullen  v.  State,  45  Ala.  43,  45.  Proof 
of  mere  threats  uttered  by  the  defend- 
ant, without  an-  attempt  at  actual  vio- 
lence and  the  ability  to  inflict  an  in- 
jury, will  not  sustain  a  conviction  of 
assault.  Smith  v.  State,  39  Miss.  521, 
529;  Williams  v.  State  (Ga.,  1897),  25 
S.  E.  Rep.  681 ;  State  v.  Davis,  1  Ired. 
L.  (N.  Car.)  125;  State  v.  Napper,  6 
Nev.  113;  People  v.  Lilley,  43  Mich. 
521;  People  v.  Jacobs,  29  Cal.  579; 
State  v.  Martin,  30  Wis.  216,  225 ;  Reg. 
«.  James,  47  Eng.  C.   L.  530;  Chap- 


man v.  State,  78  Ala.  463,  465;  State 
v.  Church,  63  N.  Car.  15,  16;  Robin- 
son v.  State,  31  Tex.  170,  3  Greenl.  on 
Ev.  61.  "These  authorities  clearly 
show  that  to  constitute  an  assault, 
there  must  be  an  intentional  attempt 
to  do  injury  to  the  person  of  another 
by  violence,  and  that  such  attempt 
must  be  coupled  with  a  present  abil- 
ity to  do  the  injury  attempted." 
State  v.  Godfrey,  17  Ore.  300,  305. 

3 Thomas  v.  State,  supra;  State  v. 
Blackwell,  9  Ala.  79. 

4  People  v.  McKenzie,  6  App.  Div. 
(N.  Y.)  199;  State  v.  Yancey,  74  N. 
Car.  244;  Tarver  v.  State,  43  Ala.  354. 
What  is  carrying  distance  is  a  ques- 
tion for  the  jury  to  determine.  Clark 
v.  State,  84  Ga.  577,  579. 

5  Chapman  v.  State,  78  Ala.  463,  465. 


§  .'5f> -J  CRIMES    AGAINST   THE    PEBSON.  417 

cases  it  will  generally  appear  that  the  menacing  gesture  was 
well  calculated  to  affect,  and  did  in  fact  affect,  the  mind  and 
purpose  of  the  person  threatened;  and  that  he  was  led  to  act 
against  his  will,  because  he  believed  his  assailant  had  the 
power  to  execute  his  threats.  In  other  words,  if  the  menacing 
conduct,  though  not  amounting  to  a  battery,  actually  puts  a 
person  in  fear  of  bodily  harm,  it  is  not  relevant  to  prove  that 
the  accused  did  not  possess  the  ability  to  carry  his  threats  into 
execution.1 

§  354.  Intention  to  do  some  corporal  harm — Circumstances 
which  are  relevant. — A  present  intention  to  do  the  person  as- 
sailed bodily  harm  by  means  of  the  force  employed  must  be 
proved  beyond  a  reasonable  doubt.2  The  violence  which  was 
used  must  be  proved  beyond  a  reasonable  doubt  to  have  been 
intentional,  or  to  have  been  conceived  in  such  a  spirit  of  wan- 
tonness as  to  supply  a  malicious  intention.  The  intent  to  in- 
jure and  the  act  of  assault  must  both  be  shown. 

Though  the  accused  may  always  testify  to  his  own  intention,3 
direct  and  positive  evidence  of  intention  may  be  dispensed 
with  and  the  intent  inferred  from  circumstances.  The  intent 
to  do  bodily  harm  may  be  inferred  from  the  force,  direction 
and  natural  or  contemplated  result  of  the  blow,4  the  weapon  or 
implement  used  by  the  accused,5  the  threats  and  menacing 
prior  conduct  of  the  accused,  and  generally  from  the  character 

1  State  v.  Marsteller,  84  N.  Car.  726,  Keefe  v.  State,  19  Ark.  190;  State  v. 
728;  Crumbley  v.  State,  61  Ga.  582,  Sears,  86  Mo.  169,  174;  State  v.  Car- 
584;  United  States  v.  Ortega,  4  Wash,     ver,  89  Me.  74,  35  Atl.  Rep.  1030. 

C.  C.  531;  State  v.  Taylor,  20  Kan.  3 Berry  v.  State,  30  Tex.  App.  423, 

643,  645 ;  Thomas  v.  State  (Ga.,  1897),  424,  17  S.  W.  Rep.  1080.    See  9  Crim. 

26  S.  E.  Rep.  748.  Law  Mag.  166. 

2  State  v.  Morgan,  3  Ired.  (N.  Car.)  4  People  v.  Conley  (Mich.,  1896),  64 
L.  186,  188,  189;  Crawford  v.  State,  21  N.  W.  Rep.  325;  People  v.  Miller,  91 
Tex.  App.  454,  457;  Smith  v.  State,  39  Mich.  639,  643,  52  N.W.  Rep.  65;  Hill 
Miss.  521,  523;  Johnson  v.  State,  35  v.  State  (Tex.,  1897),  38  S.  W.  Rep. 
Ala.  363;  State  v.  Church,  63  N.  Car.  987. 

15 ;  State  v.  King.  86  N.  Car.  603,  606,  5  State  v.  Dickerson,  98  N.  Car.  708, 
608;  Cowley  v.  State,  10  Lea  (Tenn.)  S.  E.  Rep.  687;  People  v.  Smith 
282,  284;  People  v.  Yslas,  27  Cal.  630;  (Mich.,  1896), 64 N.W. Rep.  200;  Dean 
Com.  v.  Adams,  114  Mass.  323,  3£4;  v.  State,  89  Ala.  46.  Cf.  Stater.  Broad- 
State  r.  Davis,  1  Ired.  (N.Car.)  L.  125;  bent  (Mont.,  1897),  48  Pac.  Rep.  775. 
27— Ck.  Ev. 


418  CRIMINAL  EVIDENCE.  §  355 

of  any  injurious  and  unlawful  act,  or  from  any  deliberate  ac- 
tion which  is  naturally  attended  and  usually  results  in  danger 
to  the  life  of  another  person.1 

A  specific  intent  to  cause  the  very  injury,  and  that  only 
which  ensued, need  not  be  proved.  If  bodily  harm  was  intended, 
proof  of  any  injury  will  suffice.2 

§  355.  Evidence  of  other  assaults. — It  is  not  permissible  to 
prove  assaults  by  the  defendant  upon  other  persons  or  upon 
the  same  person  at  other  times  and  places,  unless  there  is  some 
connection  between  them.  But  where  the  specific  intent  pres- 
ent in  making  the  assault  is  in  question,  evidence  of  other 
assaults  is  relevant.  Thus  where  an  assault  with  intent  to 
kill  is  alleged,  the  previous  relations  of  the  parties,  whether 
friendly  or  otherwise,  are  relevant,  and  it  may  then  be  shown 
that,  at  some  prior  time  and  other  place,  the  defendant  as- 
saulted the  same  person.3 

§  356.  Assault  with  deadly  weapons — Evidence  to  show  char- 
acter of  weapon  used. — The  expression  "deadly  weapon," 
synonymous  with  dangerous  weapon,  occurs  very  often  in 
statutes  defining  the  character  of  assaults,  and  in  the  common 
law  of  homicide.  Some  weapons  are  so  clearly  deadly  when 
used  under  particular  circumstances  that  the  court  may  declare 
them  so  as  a  matter  of  law.  So  it  has  been  held  that  a  club,4 
a  large  stone,5  a  chisel,6   a  loaded  gun  or  pistol,7  or  one  un- 

1  Conn.  v.  People,  116  111.  458,  464;  question  for  the  jury  to  find  the  intent 
Cowley  v.  State,  10  Lea  (Tenn.)  282,  on  all  the  facts.  The  circumstances 
284;  Com.  v.  Randall,  4  Gray  (Mass.)  may  show  that  his  statement  was  un- 
36 ;  State  v.  Aleck,  41  La.  An.  83 ;  Peo-  true  and  employed  to  put  the  person 
pie  v.  Miller,  91  Mich.  639,  644.  off    his    guard.     Richels    v.   State,   1 

2  Cowley  v.   State,  10  Lea  (Tenn.)  Sneed  (Tenn.)  606,  608. 

282,  284;  Tarverv.  State,  43  Ala.  354;  3  Pontius  v.  People,  82  N.  Y.  339; 

Reg.  v.Fretwell,9  CoxC.C.471 ;  People  State  v.  Kline,  54  Iowa  183. 

v.  Miller,  91  Mich.  639,  52  N.  W.  Rep.  4  State  v.  Phillips,  104  N.  Car.  786. 

65.      Thus,    pointing  a   pistol   alone  5  Regan  v.  State,  46  Wis.  256. 

may,  if  nothing  else  is  proved,  justify  6  Com.  v.  Branham,  8Bush(Ky.)387. 

an  inference  of  an   intent   to   harm.  7  State  v.  Painter,  67  Mo.  84;  Wil- 

But  this  inference  may  be  rebutted  by  son  v.  State  (Tex.,  1897),  38  S.W.  Rep. 

a  declaration  by  the  accused  that  he  1013. 
does  not  intend  to  shoot,  leaving  it  a 


§357 


CRIMKS    A  CAIN  ST    THE    PERSON. 


419 


loaded  and  used  as  a  club,1  a  knife,  when  used  in  striking  dis- 
tance,2 is  a  deadly  weapon  per  sc,  and  proof  of  an  assault  with 
any  of  these  will  sustain  a  conviction  of  an  assault  with  a 
deadly  weapon. 

If  the  evidence  as  to  the  character  of  the  weapon  or  the 
mode  in  which  it  was  used  is  at  all  conflicting,  the  determina- 
tion of  the  question  whether  a  weapon  is  deadly  is  exclusively 
for  the  jurors,  to  decide  upon  all  the  facts.3  The  size,  shape, 
character  and  weight  of  the  weapon  or  implement  used,  its 
manner  of  use,  the  strength  and  physical  condition  of  the 
defendant  and  of  the  person  attacked,  are  all  relevant 4 

§  357.    Evidence   of    threats   and   previous   hostility. — The 

prior  threats  of  the  accused  are  always  relevant  to  illustrate 
his  mental  attitude  towards  the  prosecuting  witness  at  the 
time  of  the  assault,5  unless  subsequent  to  the  making  of  the 
threats  the  parties  have  become  friends.6  If  the  accused 
claims  that  he  acted  in  self-defense,  he  may  prove  the  prior 
general  hostility  of  the  injured  party  to  him,  including  threats 
made  to  others  and  communicated  to  him,7  as  well  as  the  fact 
that  the  person  had  assaulted  others,  and  had  a  reputation  for 
quarrelsomeness.8  The  reputation  of  the  prosecuting  witness 
for  peaceableness  is  then  relevant.9 


1  Riggs  v.  Com.  (Ky.,  1896),  33  S.AV. 
Rep.  413;  Allen  v.  People,  82  111.  610. 

2  Walters  v.  State  (Tex.,  1896),  35 
S.  W.  Rep.  652;  Ferguson  v.  State,  6 
Tex.  App.  504. 

3  Smallwood  v.  Com.  (Ky.,  1896),  33 
S.  W.  Rep.  822;  People  v.  Leyba,  74 
Cal.  407. 

4  State  v.  Godfrey,  17  Ore.  300,  307; 
Skidmore  v.  State,  43  Tex.  93 ;  State  v. 
McDonald,  67  Mo.  13;  Kouns  v.  State, 
3  Tex.  App.  13;  Berry  v.  Com.,  10 
Bush  (Ky.)  15.  "Some  weapons  are 
per  se  deadly ;  others,  owing  to  the 
manner  in  which  they  are  used,  be- 
come deadly.  A  pistol  or  a  dirk  knife 
is  itself  deadly  ;  a  pocket  knife,  walk- 
ing cane  or  switch,  if  strong  or  tough, 


may  be  made  deadly  if  the  aggressor 
shall  use  it  with  great  or  furious  vio- 
lence, and  especially  if  the  party  as- 
sailed should  have  less  power,  or  be 
helpless  and  feeble."  State  v.  Hunt- 
ley, 91  N.  Car.  617. 

5  State  v.  Henn,  39  Minn.  476,  40  N. 
W.  Rep.  572,  and  ante,  §  326. 

6  People  v.  Deitz,  86  Mich.  419,  49 
N.  W.  Rep.  296. 

7  Bolton  v.  State  (Tex.,  1897),  39  S. 
W.  Rep.  672;  Rauck  v.  State,  110  Ind. 
384;  Martin  v.  State,  5  Ind.  App.  453, 
456. 

8  People  r.  Frindel,  58  Hun  (N.  Y.) 
482.     See  ante,  §324. 

9  Bowlus  v.  State,  130  Ind.  227,  230, 
28  N.  E.  Rep.  1115. 


420  CRIMINAL  EVIDENCE.  §  358 

§  358.    Robbery — Intention  present  and  force  employed. — 

Robbery  is  the  felonious  and  forcible  taking  of  goods  or  money 
from  the  person  of  another  by  violence,  or  by  putting  him  in 
fear  and  against  his  will.  The  taking  must  be  by  force,  or  by 
putting  in  fear.  These  elements  in  it  distinguish  it  from 
larceny.  If  the  money  or  goods  were  obtained  by  trick  or  con- 
trivance the  crime  is  not  robbery.1  The  fact  that  force  was 
employed  may  usually  be  proved  by  the  testimony  of  the  per- 
son robbed.2  In  case  he  is  contradicted  on  this  point,  evi- 
dence of  all  circumstances,  such  as  the  strength  and  physical 
condition  of  the  parties  and  the  place  where  the  crime  was 
committed  may  be  received.3 

"Putting  in  fear"  is  equivalent  to  the  use  of  force.  Facts 
sufficient  to  imply  the  greatest  degree  of  terror  or  fright  need 
not  be  proved.  It  is  usually  enough  that  the  facts  proved 
show  such  an  employment  of  force  alone  or  with  threatening 
language  or  gestures  as  will  result  in  the  person  robbed  sur- 
rendering his  property  without  or  against  his  consent.4  The 
party  who  was  robbed  may  testify  that  he  was  in  fear  of  vio- 
lence at  the  hands  of  the  accused,  and  may  state  his  oral 
threats  and  violent  gestures.5  It  may  also  be  presumed  by  the 
jury,  upon  whom  is  the  exclusive  determination  of  the  ques- 
tion, that  the  person  robbed  was  put  in  fear  from  facts  of 
violence  on  the  part  of  the  accused.6  The  animus  furandi 
must  be  proved.  It  must  be  shown  that  the  accused  took  the 
property  without  the  consent  of  the  owner,   intending  to  de- 

1  Routt  v.  State,  61  Ark.  594,  34  S.  tion  of  the  person  robbed,  after  the 
W.  Rep.  262;  Peoples.  Church  (Cal.,  crime,  may  be  proved  by  the  testimony 
1897),  48  Pac.  Rep.  125;  Johnson  v.  of  a  physician  who  had  examined  him. 
State  (Tex.,  1896),  32  S.  W.  Rep.  537;  Com.  v.  Flynn,  165  Mass.  153,  42  N. 
Pickerel  v.  Com.  (Ky.,  1895),  30  S.W.  E.  Rep.  562. 

Rep.  617;  Hubert.  State,  57  Ind.  341;  4  United  States  v.  Jones,   3  Wash. 

Doyle  v.  State,  77  Ga.  513;  McCloskey  C.  C.  209,  216;  Ashworth  v.  State,  31 

v.  People,  5    Park.  Cr.  R.  299;  Peo-  Tex.  Cr.  Rep.  419,  20  S.W.  Rep.  982. 

pie  v.  McGinty,  24  Hun  62.  5  Dill  v.  State,  6  Tex.  App.  113 ;  Long 

2  State  v.  Leach,  119  N.  Car.  828,  25  v.  State,  12  Ga.  293. 

S.  E.  Rep.  858.  6  State  v.  Lawler,  130  Mo.  366,  32  S. 

8  People  v.  McElroy,  60  Hun  577,  14  W.  Rep.  979;  McNamara  v.  People 
N.  Y.  Supp.  203.    The  physical  condi-     (Colo.,  1897),  48  Pac.  Rep.  541. 


§359 


CRIMKS    AOAINST    THE    PERSON. 


421 


prive  him  of  it  and  to  convert  it  to  another  use.1  This  intent 
may  be  inferred  from  the  same  description  of  facts  and  cir- 
cumstances which  would  justify  a  similar  inference  in  a 
charge  of  larceny.2  It  may  be  proved  that  the  thief  was  dis- 
guised. So,  too,  in  robbery  as  in  larceny  the  possession  of 
the  stolen  property  by  the  accused,  if  recent  and  unexplained, 
may  justify  an  inference  that  he  was  implicated  in  it.s  The 
ownership  of  the  money  may  be  inferred  as  being  in  the  person 
robbed  from  the  fact  that  it  was  taken  from  his  possession.4 
Evidence  that  the  defendant  owns  property  is  inadmissible.5 

§  359.  The  crime  of  mayhem. — The  facts  which  must  be 
proved  to  sustain  an  allegation  of  mayhem  are :  First,  the  in- 
jury; second,  malice,  and  third,  an  intent  to  maim  and  disfig- 
ure.6 Malice,7  and  the  specific  intent  to  injure,  disfigure  or 
maim  may  always  be  inferred  from  the  circumstances  under 
the  rule  that  a  man  may  be  inferred  to  have  intended  the  nat- 
ural, probable  and  reasonable  consequences  of  his  acts.8     Pre- 


1  Sledge  v.  State  (Ga.,  1897),  26  S. 
E.  Rep.  756. 

2  State  v.  Woodward,  131  Mo.  369, 
33  S.  W.  Rep.  14;  Crawford  v.  State, 
90  Ga.  701, 17  S.  E.  Rep.  628 ;  Jordan  v. 
Com.,  25  Gratt.  (Va.)943;  People  v. 
Hughes  (Utah),  39  Pac.  Rep.492 ;  Long 
v.  State,  12  Ga.  293;  State  v.  Deal,  64 
N.  Car.  270.     See,  also,  §§  292,  293. 

3  State  v.  Harris  (Iowa,  1896),  66  N. 
W.  Rep.  728;  State  v.  Wyatt,  124  Mo. 
537.  27  S.  W.  Rep.  1096;  Bradley  v. 
State,  103  Ala.  29,  15  So.  Rep.  640; 
State  v.  Balch,  136  Mo.  133,  37  S.  W. 
Rep.  808 ;  People  v.  Mackinder,  29  N. 
Y.  Supp.  842 ;  State  v.  Moore,  106  Mo. 
480,  17  S.  W.  Rep.  658.  Evidence 
tending  to  show  that  the  taking  was 
under  claim  of  title  is  admissible  to 
show  that  there  was  not  felonious 
intention.  Brown  v.  State,  28  Ark. 
126;  State  v.  Hollyway,  41  Iowa  200. 


4  Goon  Bow  v.  People,  160  111.  438; 
People  v.  Oldham,  111  Cal.  648, 44  Pac. 
Rep.  312 ;  Riggs  v.  State,  104  Ind.  261 ; 
People  ».  McDonald  (Cal.,  1897),  45 
Pac.  Rep.  1005 ;  State  v.  Adams  (Kan., 
1897),  49  Pac.  Rep.  81. 

5  Reynolds  v.  State  (Ind.,  1897),  46 
N.  E.  Rep.  31. 

6  United  States  v.  Gunther,  5  Dak. 
234,  241;  Bowers  v.  State,  24  Tex. 
App.  542,  549;  Davis  v.  State,  22  Tex. 
App.  45,  51. 

'State  v.  Bloedow,  45  Wis.  279; 
State  v.  Evans,  1  Hayw.  (N.  Car.)  281. 

8  State  v.  Hair,  37  Minn.  351,354,  34 
N.  W.  Rep.  893;  State  v.  Jones,  70 
Iowa  505;  Davis  v.  State,  22  Tex.  App. 
45,  51,  2  S.  W.  Rep.  630;  State  v. 
Abram,  10  Ala.  928,  931 ;  State  v.  Gir- 
kin,  1  Ired.  (N.  Car.)  121,  122;  Ride- 
nour  v.  State,  38  Ohio   St.   272,  274. 


422  CRIMINAL  EVIDENCE.  §  360 

meditation  existing  prior  to  the  conflict  in  which  the  injury- 
was  inflicted  is  not  necessary.1 

The  circumstances  attending  the  injury  may  be  shown  to 
rebut  the  intent  by  proving  the  defendant  inflicted  the  injury 
under  pressure  of  necessity  or  while  lawfully  defending  him- 
self, or  that  it  was  purely  accidental.2  A  previous  assault 
upon  the  defendant  is  admissible  in  justification.  It  must  be 
made  to  appear  that  the  striking  was  in  self-defense  and  that 
the  force  employed  was  in  proportion  to  the  attack.  Son  as- 
sault is  a  good  plea  in  mayhem,  but  it  must  appear  that  the 
resistance  was  in  proportion  to  the  nature  of  the  injury  offered.3 

§  360.  Sodomy. — This  crime  may  be  defined  as  the  carnal 
copulation  of  one  human  being  with  another  in  a  manner 
"  against  nature,"  or,  to  be  more  definite,  in  any  manner  than 
that  provided  by  nature.  Bestiality  is  the  carnal  copulation 
of  a  man  or  woman  with  a  beast.4  Writers  upon  criminal  law 
have  frequently,  and  with  reason,  called  attention  to  the  ease 
with  which  one  may  be  accused  of  this  crime  and  the  extreme 
difficulty  of  proving  its  commission.  If  the  crime  is  consum- 
mated, both  parties  consenting  thereto,  each  is  an  accomplice 
of  the  other  and  neither  can  be  convicted  upon  the  uncorrobo- 
rated testimony  of  the  other.  And,  as  the  crime  is  usually 
committed  when  no  third  person  is  present,  corroboration  is 
very  difficult,  if  not  impossible  to  obtain,  except  so  far  as  it 
may  be  found  in  circumstances  which  would  naturally  accom- 
pany the  commission  of  such  an  offense.5  When,  however,  the 
crime  is  attempted  or  committed  without  or  against  the  con- 
sent of  the  pathic  party  he  is  not  an  accomplice,  and  a  convic- 
tion   may  be    had    upon    his    testimony  alone.     Whether   he 

1  State  v.  Simmons,  3  Ala.  497,  498 ;  is  relevant.  People  v.  Demasters,  109 
State  v.  Crawford,  2  Dev.    (N.  Car.)     Cal.  607,  42  Pac.  Rep.  236. 

425,  427.  4  See  Bish.  Cr.  Law,  1029,  4  Bl.  Com. 

2  State  v.  Hair,  37  Minn.  351,  354.         415. 

8Hayden  v.  State,  4  Blackf.  (Ind.)  5  See  Williams  v.  Com.  (Va.,  1896), 

546,  547.   A  previous  threat  or  attempt  22  S.  E.  Rep.  859 ;  Hodges  v.  State,  94 

by  the  defendant  to  assault  the  prose-  Ga.  593 ;  People  v.  Boyle  (Cal.,  189.7), 

cuting  witness  before  the  final  assault  48  Pac.  Rep.  800. 


§361  CRIMES    A.GAIN8T    THE    PERSON.  423 

consented  is  a  question  for  the  jury1  in  all  cases  where  the  evi- 
dence is  at  all  doubtful.  Evidence  to  show  that  he  did  or  did 
not  consent  is  always  relevant." 

§  361 .  Criminal  libel  defined. — This  may  be  denned  as  a  pub- 
lication in  print  or  writing  without  justification  or  lawful  excuse, 
which  is  calculated  to  injure  the  reputation  of  another,  by  ex- 
posing him  to  hatred,  ridicule  or  contempt.3  The  state  must 
prove  the  following  facts :  First,  the  publication  by  the  de- 
fendant; second,  that  the  matter  published  is  libelous;  third, 
the  intent,  and,  fourth,  when  the  truth  is  admissible  in  de- 
fense, the  falsity  of  the  assertions  made.4 

§  362.  The  publication  of  the  libel. — The  publication  of  the 
libel  in  language  substantially  as  laid  in  the  indictment  must 
be  proved.  If  the  libel  is  in  writing  the  production  of  the 
writing,  with  sufficient  proof  that  it  is  in  the  handwriting  of  the 
accused,  is  enough.5  If  the  libel  was  printed  either  in  a  book 
or  newspaper,  the  production  of  a  copy  with  proof  that  it  was 
purchased  within  the  territorial  jurisdiction  of  the  court,  will 
raise  a  presumption  of  publication.6  Proof  that  the  accused  is 
the  editor  or  publisher  of  the  newspaper  in  which  the  alleged 
libelous  article  was  published  is  sufficient  to  connect  him  with 
the  publication.  He  can  not  prove  that  he  never  saw  the  libel 
in  fact.  Nor  can  it  be  shown  in  his  favor  that  he  had  no  act- 
ual knowledge  of  the  publication.7  To  sustain  the  allegation 
of  publishing  in  a  charge  of  criminal  libel  it  is  not  necessary 
to  prove   that  the  matter  complained  of  was  actually  seen  by 

1  People  v.  Hickey,  109  Cal.  275,  41  6  Com.  v.  Morgan,  107   Mass.   199, 

Pac.  Rep.  1027.  202.     And  evidence  to  show  the  nurn- 

2 State  r.  Smith  (Mo.,  1897),  38  S.  W.  ber  of  papers    containing    the    libel 

Rep.  717.  which  were  printed    or  sold,   or    to 

3  People  v.  Croswell,  5  Johns.  Cas.  prove  its  general  circulation,  is  always 

(N.  Y.)  337;   Raker  v.   State  (Neb.,  competent,    Boyle  v.   State,   6    Ohio 

1897),  69  N.  W.  Rep.  749;  People  v.  Cir.  Ct.  R.  163,  but  never  indispensi- 

Ritchie,  12  Utah  180.  ble.    Baker  v.  State,  97  Ga.  452,  25 

*  Odgers  on  Libel  and  Slander,  580.  S.  E.  Rep.  341. 

5  Rex  v.  Beare,  1  Lord   Raymond,  7  Com.   v.  Morgan,  107  Mass.   199, 

414.  202. 


424  CRIMINAL  EVIDENCE.  §  363 

another  person.  If  it  is  proved  beyond  a  reasonable  doubt 
that  the  accused  knowingly  displayed  the  libelous  matter,  or 
parted  with  it  under  circumstances  which  exposed  it  to  be  seen 
or  understood  by  another  than  himself,  the  proof  suffices.1 

§  363.  The  meaning  of  language  used. — Parol  evidence  is 
always  admissible  to  explain  the  meaning  of  the  language  used 
and  to  identify  the  persons,  objects  and  incidents  referred  to. 
Thus,  where  the  libelous  article  does  not  refer  to  the  prosecut- 
ing witness  nominatim,  a  witness  may  testify  that  from  his 
knowledge  of  all  the  facts  and  circumstances,  he  understood 
that  he  was  the  person  alluded  to.2  So  the  meaning  of  words 
which  are  slangy,  technical  or  ambiguous,  may  be  explained  by 
parol  evidence.3 

§  364.  Malicious  intention  in  publishing. — Malice  on  the 
part  of  the  accused  must  be  proved.  But  it  is  not  to  be  under- 
stood that  it  must  be  shown  that  the  accused  was  actuated  by 
ill-will  or  vindictive  feeling  towards  the  person  who  is  the  ob- 
ject of  the  libelous  allegations.  Malice  in  the  legal,  not  the 
ordinary  sense  of  the  term,  is  meant,  and  this  may  be  inferred 
from  the  willful  doing  of  any  unlawful  act  which  is  calculated 
to  injure  the  person  alluded  to.4 

The  existence  of  malice  is  a  question  for  the  jury.  Evidence 
of  all  facts  and  circumstances  is  admissible  which  may  throw 
any  light  upon  the  intention  of  the  defendant,  and  which  will 

1  Giles  v.  State,  6  Ga.  276;  New  York  ment,  must  be  proved  strictly  as  al- 
Penal  Code,  245.  See,  also,  Haase  v.  leged.  Frisby  v.  State,  26  Tex.  App. 
State,  53  N.  J.  L.  34,  20  Atl.  Rep.  751;  180,  9  S.  W.  Rep.  463;  Berry  v. 
State  v.  Barnes,  32  Me.  530.  State,  27  Tex.  App.  483,  11  S.  W.  Rep. 

2  Com.  v.  Morgan,  107  Mass.  199;  521;  State  v.  Armstrong.  106  Mo.  395, 
State  v.  Mason,  26  Ore.  273,  38  Pac.  16  S.  W.  Rep.  604;  Neely  v.  State,  32 
Rep.  130;  Enquirer  v.  Johnston,  72  Tex.  Cr.  Rep.  370;  Stichtd  v.  State,  25 
Fed.  Rep.  443.  But  see  contra,  People  Tex.  App.  420,  8  S.  W.  Rep.  477.  So 
v.  McDowell,  71  Cal.  194,  11  Pac.  of  slanderous  words.  Barnett  v.  State 
Rep.  868;    Dickson  v.  State,  34  Tex.  (Tex.,  1896),  33  S.  W.  Rep.  340. 

Cr.  Rep.  1,  28S.W.  Rep.  815.  4  State   v.    Brady,    44   Kan.  435,  24 

3  Dickson  v.  State,  34  Tex.  Cr.  Rep.  1,  Pac.  Rep.  948;  Fitzpatrick  v.  Daily 
28  S.  W.  Rep.  815;  States.  Fitzgerald,  States  Pub.  Co.,  48  La.  An.  1116,  20 
20  Mo.  App.  408.    The  libelous  Ian-  So.  Rep.  173. 

guage,   as    set    forth    in    the    indict- 


§364 


CRIMES    AGAINST    THK    PERSON. 


42.: 


show  that  he  acted  honestly,  or  the  reverse,  that  he  was 
prompted  by  a  desire  to  stir  up  strife  or  to  promote  the  public 
welfare  by  his  publication.1  Evidence  of  other  libelous  pub- 
lications by  the  accused,  directed  against  the  same  person  or 
against  others,  unconnected  with  the  one  complained  of,  is 
admissible  to  prove  the  intention,2  if  the  date  of  publication 
is  near  enough  to  afford  an  inference  that  similar  motives 
prompted  the  accused  in  both  cases.3  The  accused  should  al- 
ways be  permitted  to  testify  to  his  own  intention,4  and  may 
also  prove  all  the  circumstances  under  which  publication  was 
made,  the  facts  on  which  it  was  based,  and  the  source  of  the 
information  which  is  contained  in  the  statement.5 

The  question  of  the  intention  of  the  accused  in  publishing 
the  libel  is  a  mixed  question  of  law  and  fact,  to  be  determined 
by  the  jury  under  the  instruction  of  the  court.6 


1  Smith  v.  Com.  98  Ky.  437,  33  S. 
W.  Rep.  419. 

2  Com.  v.  Harmon,  2  Gray  (Mass.) 
289;  Manning  v.  State  (Tex.,  1897), 
39  S.  W.  Rep.  118;  State  v.  Conable, 
81  Iowa  60,  46  N.  W.  Rep.  759. 

3  Eldridge  v.  State,  27  Fla.  162,  9  So. 
Rep.  448.    See  §  88,  et  seq. 

4  People  v.  Stark,  59  Hun  (N.  Y.)  51, 
12  N.  Y.  Sup.  688;  State  v.  Clyne 
53  Kan.  8,  35  Pac.  Rep.  789. 

5  Duke  v.  State,  19  Tex.  App.  14; 
People  v.  Classman,  12  Utah  237,  42 
Pac.  R.  956  r»  Com.  v.  Snelling,  32 
Mass.  337,  339 ;  Com.  v.  Bonner,9  Met. 
(Mass.)  410;  Benton  v.  State  (N.  J., 
1897),  36  Atl.  Rep.  1041.  But  it  seems 
that  he  can  not  prove  that  he  repeated 
what  another  had  told  him  to  corrob- 
orate him  where  the  latter  was  accused 
of  falsehood  and  threatened  with  per- 
sonal violence.  Shaw  ».  State,  28 
Tex.  App.  236,  12  S.  W.  Rep.  741. 

6  Benton  v.  State  (N.  J.,  1897),  36  Atl. 
Rep.  1041  ;  State  v.  Norton,  89  Me. 
290,36  Atl.  Rep.  394;  Baker  v.  State, 
97  Ga.  452,  25  S.  E.  Rep.  341.  In 
Rex  v.  Woodfall,  5  Burr.  2661,  Lord 


Mansfield  thus  expresses  himself  upon 
the  question  of  intent:  "  Where  an 
act,  in  itself  indifferent,  becomes  crim- 
inal when  done  with  a  particular  in- 
tent, there  the  intent  must  be  proved. 
Where  the  act.  is  itself  unlawful,  as  in 
the  case  of  a  libel,  the  burden  of  prov- 
ing justification  or  excuse  lies  on  the 
defendant;  and  in  failure  thereof  the 
law  implies  a  criminal  intent."  This 
is  certainly  good  law  where  a  man 
publishes  matter  criminal  per  se  and 
offers  no  evidence  in  explanation  or 
exculpation.  But  usually  the  evidence 
as  to  the  intent  of  the  accused  is  con- 
flicting, and  the  jury  must  consider 
other  facts  than  publication  only. 
The  court  adds :  "There  may  be  cases 
where  the  publication  of  an  article, 
plainly  libelous,  may  be  excused  or 
justified  as  lawful  or  innocent ;  for  no 
act  which  is  not  criminal,  though  the 
paper  be  a  libel,  can  amount  to  such 
a  publication  of  which  a  defendant 
ought  to  be  found  guilty."  In  the 
case  of  the  King  v.  The  Dean  of  St. 
Asaph,  reported  3  T.  R.  428,  the  right 
of  the  jury  to  determine  the  intent  of 


426 


CRIMINAL    EVIDENCE. 


§365 


§  365.  Evidence  of  the  truth  as  a  defense. — At  common  law 
the  defendant  in  a  criminal  prosecution  was  not  permitted  to 
prove  the  truth  of  the  statement  complained  of.  Hence  arose 
Lord  Mansfield's  celebrated  dictum,  "the  greater  the  truth, 
the  greater  the  libel ;"  the  supposition  being  that  the  greater 
the  appearance  of  truth  in  a  criminal  libel,  the  more  likely 
would  it  tend  to  stir  up  the  victim  to  revenge  himself  and  lead 
to  a  breach  of  the  peace,  with  possible  homicide  or  bloodshed. 
But  now  by  statute  in  England,1  and  under  various  constitu- 
tional and  statutory  provisions  in  the  states,  the  defendant  is 
permitted  to  prove  the  truth  of  his  assertions,  and  that  they 
were  published  for  the  public  benefit.2 

The  accused  is  permitted  to  prove  the  truth  of  the  statements 
for  which  he  is  to  be  held  responsible.  But  usually  the  truth  alone 
is  not  a  sufficient  excuse  if  the  libel  was  published  in  bad  faith 
and  with  an  intent  to  injure.3     Where  the  truth  is  a  sufficient 


the  defendant  in  publishing  a  libel 
received  a  thorough  discussion.  Down 
to  that  time  the  uninterrupted  current 
of  the  decisions  undoubtedly  confined 
the  jury  to  determining  the  fact  of 
publication  and  the  meaning  of  the 
words  only.  The  question  of  intent, 
whether  the  publication  was  or  was 
not  libelous,  or,  in  other  words,  the 
criminality  of  the  act  of  publishing 
was  for  the  court  to  determine  upon 
the  record  after  the  jury  had  found 
that  the  accused  had  published  it,  and 
the  meaning  of  the  language.  So  far 
as  the  jury  were  forbidden  to  consider 
the  intention  of  the  accused,  the  crime 
of  libel  constituted,  it  was  admitted, 
an  exception  to  the  rule  by  which  the 
jury  determined  the  guilty  intent  of 
the  accused  in  all  cases.  The  nat- 
ural consequence  of  this  was,  that  ju- 
ries, finding  that  the  accused  was  pre- 
vented from  offering  any  evidence  to 
explain  the  motives  of  his  actions, 
and  that  they  were  shut  out  from  con- 
sidering them,  and  that  all  that  re- 
mained for  them  to  do  was  to  find  the 


fact  of  publication,  which  was  usually 
admitted,  very  often  improperly  ac- 
quitted those  who  were  in  fact  guilty 
in  order  merely  to  show  their  inde- 
pendence of  judicial  domination.  Aft- 
er the  decision  of  the  case  above  men- 
tioned, the  Statute  32,  Geo.  Ill,  c.  60, 
was  passed,  which  provided  as  follows: 
"That  on  every  trial  for  a  criminal  li- 
bel, the  jury  sworn  to  try  the  issue 
may  give  a  general  verdict  of  guilty 
or  not  guilty  upon  the  whole  matter 
put  in  issue  upon  such  indictment; 
and  shall  not  be  required  or  directed 
by  the  court  or  judge,  before  whom 
such  indictment  shall  be  tried,  to  find 
the  defendant  guilty  merely  on  the 
proof  of  the  publication  by  such  de- 
fendant of  the  paper  charged  to  be  a 
libel." 

1  Lord  Campbell's  Act,  6  and  7  Vic. 
(1843),  c.  96. 

2Odger's  Libel  and  Slander,  388- 
390;  Reg.  v.  O'Brien,  4  Cr.  L.  Mag. 
424. 

3  Barthelemy  v.  People,  2  Hill  (N. 
Y.)  248;  State  v.  Bush,  122  Ind.  42; 


§  365 


CRIMKS    AGAINST    THE    I'KRSON. 


427 


justification,  the  accused  is  not  compelled  to  prove  it  beyond  a 
reasonable  doubt.1  It  is  enough  if  upon  all  the  evidence  the 
jury  believe  his  statements  are  true.  And  where  the  evidence 
for  the  defendant  creates  a  prima  facie  presumption  in  the 
minds  of  jurors  that  his  statements  are  true,  it  is  incumbent 
upon  the  prosecution  to  convince  them  of  their  falsity  beyond 
all  reasonable  doubt.2  It  is  only  necessary  to  prove  the  truth 
of  that  part  of  the  publication  which  is  alleged  to  be  libelous.3 
Evidence  to  prove  the  truth  of  the  charges  made  by  the  accused 
must  come  from  witnesses  who  have  a  competent  knowledge 
of  the  facts,  acquired  by  their  own  observation.  Hearsay  is 
not  admissible.  Hence  it  is  not  allowable  to  prove  that  the 
matters  referred  to  in  the  alleged  libel  were  rumored  about  the 
neighborhood,  and  were  accepted  as  the  truth  by  persons  who 
knew  the  party  libeled.4 


State  v.  Lehre,  2  Brev.  (S.  Car.)  446; 
State  v.  Lyon,  89  N.  Car.  568. 

1  Manning  v.  State  (Tex.,  1897),  39 
S.  W.  Rep.  118. 

2  State  v.  Bush,  122  Ind.  42,  23  N. 
E.  Rep.  677;  McArthur  v.  State,  59 
Ark.  431,  27  S.  W.  Rep.  628;  States. 
Wait,  44  Kan.  310,  24  Pac.  Rep.  354; 
State  v.  Rudy,  5  Pa.  Dis.  Co.  270; 
Smith  v.  Com.,  98  Ky.  437,  33  S.  W. 
Rep.  419. 

3  State  v.  Wait,  44  Kan.  310,  24  Pac. 
Rep.  354. 

4  Com.  v.  Place,  153  Pa.  St.  314,  26 
Atl.  Rep.  620;  People  v.  Jackman,  96 
Mich.  269,  55  N.  W.  Rep.  809;  State*. 
Hinson,  103  N.  Car.  374,  9  S.  E.  Rep. 
552.  Contra.  Humbard  v.  State,  21 
Tex.  App.  200,  17  S.  W.  Rep.  126.  In 
Com.  v.  Snelling,  32  Mass.  337,  342, 
the  court,  by  Shaw,  C.  J.,  said :  "  But 
how  is  this  defense  to  be.  made  ?    By 


proof  of  the  truth  of  the  matter ;  not 
his  belief  of  the  truth  ;  not  his  infor- 
mation, nor  the  strength  of  the  au- 
thority on  which  such  belief  was  taken 
up."  The  accused  will  not  be  per- 
mitted to  prove  the  general  bad  char- 
acter of  the  party  libeled.  People  v. 
Stokes,  24  N.  Y.  Supp.  727,  30  Abb.  N. 
Cas.  200.  Contra,  by  statute  in  Texas. 
Manning  v.  State  (Tex.,  1897),  39  S. 
W.  Rep.  118.  In  Texas,  Penal  Code, 
Art.  646;  Missouri,  Rev.  St.,  §  3858; 
North  Carolina,  N.  Car.  Code,  §  1113, 
and  some  other  states  slander,  consist- 
ing of  words,  imputing  unchastity  to 
a  woman,  is  good  ground  for  an  indict- 
ment. The  mode  of  proof,  except  so 
far  as  the  words  uttered  are  oral  and 
not  written,  is  the  same  as  in  criminal 
libel.  Burnham  v.  State,  37  Fla.  327, 
20  So.  Rep.  548. 


CHAPTER  XXVI. 


OFFENSES    AGAINST    HUMAN    HABITATIONS. 


§366.  Arson — At  common  law  and  by 
statute — Evidence  to  show 
locality  of  building. 

367.  Proof  of  actual  burning  required 

— Non-accidental  character 
of  fire — Proof  of  premises 
burned. 

368.  Threats  and    declarations    by 

the  accused — Remoteness. 

369.  Relevance  of  evidence  to  show 

the  intent — Proof  of  other 
crimes. 

370.  Evidence  of  preparation  and  to 

show  that  the  accused  was 
near  the  burned  premises. 

371.  Burglary  defined — Entrance  at 

night  time — Preparations  to 
commit. 


§372. 


373. 


374. 


375. 

376. 
377. 

378. 

379. 


Evidence  to  prove  forcible 
breaking  and  entering— The 
condition  of  the  premises. 

Proof  of  constructive  breaking 
— Non-consent  of  owner — 
Evidence  of  ownership  and 
value  of  property. 

Correspondence  of  foot-prints 
with  the  foot-wear  of  the  ac- 
cused. 

Burglarious  tools  in  the  posses- 
sion of  the  accused. 

Other  burglarious  acts. 

The  felonious  intention  pres- 
ent in  entering. 

Presumption  from  the  posses- 
sion of  stolen  property. 

Articles  stolen  from  the  prem- 
ises as  evidence. 


§  366.  Arson — At  common  law  and  by  statute — Evidence  to 
show  locality  of  building. — The  malicious  or  willful  burning 
of  the  house  or  out-house  of  another,  or  the  burning  of  any 
building,  so  situated  as  to  endanger  a  dwelling-house,  is  arson 
at  common  law.1  This  crime  is  sometimes  graded  by  statute 
according  to  the  degree  in  which  it  involves  danger  to  human 
life.  The  malicious  and  intentional  burning  of  one's  own 
house,  or  of  buildings  which  are  not  the  subject  of  arson  at 
common  law,2  is  sometimes  made  arson  by  statute.3 


1  4  Bl.  Com.  220. 

2  State  v.  Sarvis,  45  S.  Car.  668,  24 
S.  E.  Rep.  53. 

3  Burger  v.  State,  34  Neb.  397,  51  N. 
W. Rep. 1027 ;  State  w.Grimes,  50  Minn. 


123,  52  N.  W.  Rep.  275 ;  People  v.  Fair- 
child,  48  Mich.  31;  State  v.  Harvey, 
131  Mo.  339,  32  S.  W.  Rep.  1110 ;  Com. 
v.  Uhrig,  167  Mass.  420,  45  N.  E.  Rep. 
1047. 


(428) 


§  367  OFFENSES    AGAINST    HUMAN    HABITATIONS.  429 

The  dwelling  or  other  building  must  be  proved  substantially 
as  laid  in  the  indictment.1  Description  and  proof  by  street  and 
number,  or  by  its  proximity  to  well-known  landmarks,  is 
sufficient  to  sustain  the  venue.  The  ownership  of  the  build- 
ing need  not  be  strictly  proved,  unless  it  is  an  essential  ele- 
ment of  the  crime,  as  when  one  is  indicted  for  setting  fire  to 
his  own  house.2 

§367.  Proof  of  actual  burning  required  —  Non-accidental 
character  of  fire — Proof  of  premises  burned.  —  In  order  to 
prove  the  corpus  delicti  of  arson,  it  is  not  sufficient  merely  to 
show  a  burning,  which  may  have  been  the  result  of  an  acci- 
dent. It  must  be  proved  beyond  a  reasonable  doubt  that  the 
burning  was  willfully  and  maliciously  caused  by  some  person 
who  was  morally  responsible  for  his  actions.3  At  common  law 
the  actual  burning  of  the  whole  or  of  some  part  of  the  house 
must  be  proved,  though  proof  of  the  actual  burning  of  the 
smallest  part  is  sufficient.  It  need  not  be  shown  that  the  wood 
blazed,  but  proof  that  the  wood  or  other  inflammable  material 
was  charred,  i.  e.,  reduced  to  charcoal,  and  its  identity  de- 
stroyed, is  always  required.  A  mere  discoloration  or  scorch- 
ing black  by  smoke  or  heat  is  not  enough.4 

§  368.  Threats  and  declarations  by  the  accused. — Remote- 
ness.— Any  statements,  utterances  or  declarations  which  are 

1  State  o.  Jeter  (S.  Car.,  1896),  24  S.  *  State  v.  Hall,  93  N.  Car.  571 ;  Wool- 
E.  Rep.  889.  sey  v.  State,  30  Tex.  App.  346,  17  S. 

2  People  v.  Handley,  100  Cal.  370, 34  W.  Rep.  546.  The  opinion  of  a  witness 
Pac.  Rep.  853.  When  ownership  is  to  the  effect  that  he  thought  a  house 
relevant,  it  may  be  proved  by  a  certi-  had  been  set  on  fire  is  not  admissible, 
fied  copy  of  a  recorded  deed,  with  State  v.  Nolan,  48  Kan.  723,  29  Pac. 
oral  evidence  that  the  accused  had  Rep.  568.  An  allegation  of  burning  a 
made  an  oral  lease,  or  had  signed  as  dwelling-house  is  not  sustained  by 
owner.  Com.  v.  Preece,  140  Mass.  proof  of  burning  a  house  not  a  dwell- 
276,  278,  5  N.  E.  Rep.  494.  ing.     Com.  v.  Hayden,  150  Mass.  332, 

3  Winslow  v.  State,  76  Ala.  42;  Jesse  333,  23  N.  E.  Rep.  51 ;  Com  v.  Well- 
v.  State,  28  Miss.  100,  109;  Thomas  v.  ington,  7  Allen  (Mass.)  290,  or  a 
State,  41  Tex.  27;  Com.  v.  Phillips,  14  dwelling  which  is  vacant.  People  v. 
S.  W.  Rep.  378;  Jenkins  v.  State,  53  Handley,  93  Mich.  46,  48.  52  N.  W. 
Ga.  33;  Brown  v.  Com.,  87  Va.  215,  Rep.  1032.  Cf.  Stater.  Carter  (S.  Car., 
12  S.  E.  Rep.  472.  1897),  27  S.  E.  Rep.  106. 


430  CRIMINAL  EVIDENCE.  §  368 

connected  with  the  res  gestae  of  the  burning  are  receivable. 
Under  this  head  may  be  grouped  threats  made  prior  to  the  fire, 
and,  where  it  is  his  own  property  which  is  destroyed,  the 
statement  of  the  accused  as  to  the  probable  cause  of  the  fire, 
the  value  of  the  property  which  was  burned  and  of  the  amount 
of  insurance  thereon.  So,  too,  any  declarations  made  by  him 
or  in  his  presence  and  adopted  by  him,  contemporaneous  with 
and  explanatory  of  the  main  transaction  are  admissible.1 

In  a  prosecution  for  arson  in  setting  fire  to  the  dwelling  or 
other  building  owned  by  another  person,  a  declaration  made 
by  the  accused  that,  as  he  had  been  put  out,  no  one  else  would 
ever  prosper  in  that  place,2  or  threats  of  bodily  harm  made  by 
him  and  directed  against  the  owner,3  are  always  admissible  to 
show  malice  and  ill-will.  It  is  not  material  that  the  threats 
were  vague  and  general  in  their  character,  and  that  they  did 
not  point  directly  to  the  property  which  was  burned,  if  they 
indicated  hostility  to  its  owner.  Threats  will  not  be  rejected 
because  directed  against  members  of  the  owner's  family  gener- 
ally who  did  not  reside  in  the  building  which  was  burned  or 
because  they  show  a  general  intention  to  be  revenged  though 
not  by  any  particular  means.4  It  may  be  shown  that  the  ac- 
cused had  threatened  the  owner  of  a  house  adjacent  to  that 
which  was  burned,5  or  a  person  who,  though  not  the  owner, 
had  goods  stored  in  the  building.6  The  length  of  time  which 
has  elapsed  between  the  utterance  of  the  threat  and  the  destruc- 
tion of  the  building,  though,  perhaps,  affecting  the  weight  of 
the  threat  as  evidence,  is  no  objection  to  its  admission.7 

1  Com.  v.  Wesley,  166  Mass.  248,  44  3Ford  v.  State,  112  Ind.  373,  383,  14 
N.  E.  Rep.  288;  People  v.  Eaton,  59  N.  E.  Rep.  241;  State  v.  Crawford,  99 
Mich.  559;  State  v.  Ward,  61  Vt.  153,     Mo.  74,  77-79,  12  S.  W.  Rep.  354. 

17  Atl.  Rep.  483.  4  Johnson  v.  State,  89  Ga.  107,  14  S. 

2  People  v.  Eaton,  59  Mich.  559,  561,     E.  Rep.  889. 

26  N.  W.  Rep.  702.     Express  threats  5Bond  v.  Com.,  83  Va.  581. 

to  burn  the  house  of  another,  with  the  6  State  v.  Emery,  59  Vt.  84. 

whole  conversation  which  led  up  to  7Com.  v.   Quinn,   150  Mass.  401,  23 

them,  are  particularly  relevant.   State  N.   E.    Rep.   54.     A   threat,   directed 

v.  Lytle,  117  N.  Car.  799,  23  S.  E.  Rep.  against  a  building  specified,  is  not  ex- 

476;    Prater  v.  State,  107  Ala.  26,  18  eluded  as  evidence,  by  a  subsequent 

So.  Rep.  238.  change  in  the  ownership  of  the  build- 


5  369  OFFENSES    AGAINST    HUMAN    HABITATIONS.  431 

§  360.  Relevancy  of  evidence — Proof  of  oilier  similar  crimes. 

— The  intent  to  set  fire  must  be  shown  whether  the  crime  al- 
leged is  the  arson  of  one's  own  house  or  of  some  other  person's. 
Direct  proof  of  an  intent  to  commit  the  crime  is  never  required. 
The  criminal  intent  may  be  inferred  from  the  circumstances 
attendant  on  the  burning,1  or  from  the  hostility  of  the  accused 
to  the  owner.2  If  the  accused  is  charged  with  the  arson  of  his 
own  house  it  may  always  be  shown  to  supply  a  motive  that  he 
was  financially  embarrassed  at  the  time,3  and  that  he  had  over- 
valued and  unduly  insured  his  property.4  The  amount  of  the 
loss,5  and  the  value  of  the  whole  property,  exclusive  of  the 
land  upon  which  it  is  located,6  are  always  relevant  in  evidence. 
Except,  perhaps,  to  show  that  burning  was  intentional,  evi- 
dence of  the  burning  of  other  property  belonging  to  the  accused 
is  not  received.  Thus,  when  it  is  charged  that  the  accused  has 
set  his  own  house  on  fire,  it  may  be  shown  that  at  some  pre- 
vious time  the  same  or  other  buildings  belonging  to  him  had 
burned,  or  that  he  had  endeavored  to  induce  some  one  to  set 
fire  to  his  buildings.7  Evidence  that  the  accused  forbade  the 
removal  of  property  from  the  house  of  which  he  was  the  owner 
while  it  was  burning  is  admissible  to  prove  that  he  started  the 
fire.8  If  the  accused  is  charged  with  setting  fire  to  the  house 
of  another,  evidence  to  show  his  familiarity  with  the  premises,9 
and  that  goods  which  were  in  the   house  when   it  was  burned 


ing.     State  v.  Fenlason,  78  Me.  495;  Kelly,  42  N.  Y.  Supp.  756,  11  App 

Corn.  v.  Crowe,  165  Mass.  139,  42  N.  Div.  495. 

E.  Rep.  563.  "People  v.   Sevine  (Cal.),   22  Pac 

iCom.  v.  Goldstein,  114  Mass.  272;  Rep.  969. 
State  r.  England,  78  N.  Car.  552;  State        6  State  v.  Ward,  61  Vt.  153,  17  Atl 

v.  Lytle,  117  N.  Car.  799 ;  Luke  v.  State,  Rep.  483. 
49  Ala.  30.  'Com.   v.  Bradford,  12<>    Mass.  42 

*See  ante,  §  368.  People    v.    Lattimore,    86    Cal.    403 

3  State  v.  Hull,  83  Iowa  112,  48  N.  W.  Meister  v.  People,  31  Mich.  99 ;  People 

Rep.  917.  v.  Foamier  (Cal.,  1897),  47  Pac.  Rep 

*  Stitz  v.  State,  104  Ind.  359;  Com.  1014. 
r.  Hudson,  97    Mass.   565;  People  v.        "Bluman   v.   State,   21   S.  W.  Rep 

Sevine     (Cal.),    22    Pac.    Rep.    969;  1027,  33  Tex.  Cr.  Rep.  43. 
State  v.  Cobn,  9  Nev.  179;  People  v.        9People  v.  Murphy,  135  N.  Y.  450. 


432  CRIMINAL  EVIDENCE.  §  370 

were  subsequently  found  in  a  trunk  in  his  possession,  is  always 
admissible.1 

The  opinions  of  fire  insurance  experts,  based  on  an  examin- 
ation of  the  debris,  are  admissible  as  to  the  quantity  of  goods 
which  have  been  burned,2  and  perhaps  as  to  the  origin  of  the 
fire.3  The  location  and  occupation  of  buildings  near  that 
which  was  burned  may  be  shown  by  maps,  photographs  or 
otherwise,  to  enable  the  jury  to  understand  the  evidence  more 
clearly.* 

§  370.  Evidence  of  preparation  to  show  that  the  accused  was 
near  the  burned  premises. — Evidence  tending  to  show  that  the 
defendant  made  preparations  to  commit  the  crime  is  always  ad- 
missible. So  it  may  be  proved  where  and  how  he  procured 
gunpowder  with  which  the  fire  was  started,5  even  where  this 
involves  proving  another  crime  ;  and  that  he  was  seen  in  the 
building  after  business  hours  or  observed  skulking  near  by.6 

The  testimony  of  a  prosecuting  witness,  that  he  took  extraor- 
dinary precautions  against  fire  because  of  other  fires,  is  relevant 
to  show  the  incendiary  origin  of  the  fire  in  question  ;7  but  evi- 
dence that  other  buildings  in  the  vicinity  were  burned  about 
the  same  time  as  the  building  in  question  is  always  irrelevant, 
in  the  absence  of  evidence  connecting  the  defendant  therewith.8 
It  is  always  relevant,  particularly  in  the  case  of  the  crime  of 
arson,  which  is  usually  committed  at  night  and  with  the 
greatest  secrecy,  to  show  that  the  accused  was  seen  in  the  vicin- 
ity of  the  burned  building  about  the  time  of  the  fire,  whether 
before  or  after  it  occurred.9 

1  State  v.  Vatter,  71  Iowa  557.  5  State  v.   Roberts,  15  Ore.  187,   13 

2  Birmingham  F.  Ins.  Co.  v.  Pulver,     Pac.  Rep.  896. 

126  111.  329.  6State  v.  Crawford,  99  Mo.  74,  78, 

3  Cook  v.  Johnston,  58  Mich.  437.  12  S.  W.  Rep.  354. 

4  People  v.  Cassidy,  133  N.  Y.  612.  7  State  v.   McMahon,  17  Nev.   365, 
If  it  appears  that  the  defendant  had  374,  376,  30  Pac.  Rep.  1000. 
removed  goods  from  the  burned  build-  8  Com.  v.  Gauvin,  143  Mass.  134,  8 
ing  prior  to  the  fire  he  must  be  per-  N.  E.  Rep.  895. 

mitted  to  explain  the  removal.  People  9In  State  v.  Ward,  61  Vt.  153,  17 
v.  Fournier  (Cal.,  1897),  47  Pac.  Rep.  Atl.  Rep.  483,  after  evidence  tending  to 
1014.  connect  the  accused  with  the  fire  had 


§  371  OFFENSES    AGAINST    HUMAN     HABITATIONS.  433 

Where  an  incendiary  fire  was  proved  to  have  been  kindled 
with  kerosene,  it  may  be  shown  that,  about  the  same  date,  the 
accused  had  kerosene  stains  upon  his  clothing1  and  that  he  was 
seen  leaving  the  building  burned  with  an  oil  can  in  bis  hands.1 

It  may  be  shown  that  the  accused,  when  arrested,  soon  after 
the  fire,  had  poisoned  meat  in  his  possession,  prepared  in  a 
peculiar  manner,  where  a  dog  belonging  to  the  owner  of  the 
burned  property  was  poisoned  on  the  night  of  the  fire  and  a 
post-mortem  examination  show  poisoned  meat  in  the  animal's 
stomach  similarly  prepared.3 

§  371.  Burglary  defined — Entrance  at  night-time — Prepara- 
tions to  commit. — Burglary  is  the  breaking  in  and  entering  the 
house  of  another  in  the  night-time  with  the  intent  to  commit 
a  felony  (usually  larceny,  but  often  rape  or  murder),  and 
whether  the  felony  is  actually  committed  or  not.4  The  elements 
to  be  proved  at  common  law  are  :  First,  a  felonious  breaking 
and  entering  ;  second,  that  it  was  a  dwelling-house  ;  third,  that 
it  occurred  in  the  night-time;  fourth,  an  intention  to  commit 
some  felony  in  the  house.  The  intent  to  commit  a  felony  is 
always  for  the  jury  to  determine.  In  doing  so  they  may  con- 
sider all  the  facts  and  circumstances  as  disclosed  by  the  evi- 
dence.5 

At  common  law  it  must  always  be  shown  that  the  breaking 
in  and  entering  occurred  in  the  night-time,6^,  c,  the   period 

been  introduced,  and  it  also  appeared  State,  109  Ala.  25,  18  So.  Rep.  229; 

that    the    incendiary    had    driven    a  Gawn  v.  State,  7  Ohio  Dec.  6. 

sleigh  over  a  certain  route,  which  left  3Halleck  v.  State,  65  Wis.   147,  26 

peculiar  tracks,  the  state  was  permit-  N.  W.  Rep.  572. 

ted  to  show  the  accused  had  used  such  4  2  Russ.  on  Crimes,  p.  1. 

a  sleigh  on  the  night  of  the  fire;  and  5  State  v.  Teeter,  69  Iowa  717;  Peo- 

that,  on  the  same  night,  he  had  hired  pie  v.  Soto,  53  Cal.  415. 

a  horse,  which,  when  driven  without  e  Ashford  v.  State,  36  Neb.  38,  40,  53 

guidance,  within  four  days  thereafter  N.  W.  Rep.  1036;  State  >■.  Seymour, 36 

voluntarily  chose  the  route  taken  by  Me.   225,   227;     State  v.   Leaden,   35 

the  person  who  fired  the  house.  Conn.  515;  Guynes  r.  State,  25  Tex. 

1  State  v.  Kingsbury,  58  Me.  238.  App.  584 ;  Waters  v.  State,  53  Ga.  567 ; 

2  People  v.  Burridge,  99  Mich.  343,  People  v .  Taggart.43  Cal.  81, 87;  Allen 
58  N.  W.  Rep.  319.      Cf.  Thomas  v.  v.  State,  40  Ala.  334;  Com.  v.  Glover, 

28 -Cr.  Ev.  Ill  Mass.  395,  402. 


434  CRIMINAL  EVIDENCE.  §  372 

intervening  between  the  total  disappearance  of  daylight  in  the 
evening  and  its  reappearance  at  the  earliest  dawn  of  the  next 
day,  during  which  a  person's  features  are  not  discernible. 
Evidence  that  features  were  discernible  by  artificial  light,  or 
by  moonlight,  is  not  admissible.1  Proof  of  a  breaking  in  one 
night  and  an  entrance  the  following  night  will  sustain  a  con- 
viction.2 If  the  evidence  leaves  the  exact  time  in  doubt,  and 
it  can  not  be  positively  ascertained  whether  the  breaking  in 
was  in  the  night-time  or  not,  the  prisoner  should  have  the 
benefit  of  the  doubt.3  Evidence  that  the  accused  had  made 
preparations  to  commit  a  burglary ;  that  he  had  endeavored  to 
induce  the  custodian  of  the  premises  which  were  broken  into 
to  absent  himself,  or  had  procured  burglar's  tools,4  and  had 
been  seen  lurking  about  the  premises,5  or  had  made  inquiries  as 
to  property  which  was  in  the  house,6  or  as  to  the  character, 
financial  circumstances  and  habits  of  its  inmates,  is  always 
admissible.7 

§  372.  Evidence  to  prove  forcible  breaking  in  and  entering 
— Condition  of  the  premises. — The  gist  of  the  crime  is  the 
forcible  and  malicious  breaking  in.  Hence  the  condition  of 
the  premises  before  and  after  the  offense  may  always  be  shown. 
It  may  be  shown  that  foot-prints  were  observed  on  a  road 
leading  to  or  in  the  grounds  around  the  house,8  that  shoes  of 
the  size  worn  by  the  accused,9  or  articles  of  wearing  apparel 
belonging  to  him,  were  found  near  by,  and  that,  from  appear- 
ances and  in  the  opinion  of  witnesses  (but  based  on  their  own 
observation  only),  force  had  been  used  to  effect  an  entrance,10 

1  State  v.  Morris,  47  Conn.  179 ;  State  '  7  State  v.  Ward,  103  N.  Car.  419, 423. 
v.  McKnight,  111  N.  Car.  690,  692;  Proof  that  the  value  of  the  property  in 
Com.  v.  Kaas,  3  Brewst.  (Pa.)  422;  the  house  was  small  does  not  admit 
State  v.  Bancroft,  10  N.  H.  105,  107,  evidence  that  the  accused  is  a  man 
2  East  P.  C.  509, 1  Hale  P.  C.  550.  of  large  means  and  in  good  circum- 

2  Rex.  v.  Smith,  Russ.  &  Ry.  417.  stances.     Coates  v.  State,  31  Tex.  Cr. 

3  Waters  v.  State,  53  Ga.  567.  Rep.  257,  261. 

4  People  v.  Calvert,  67  Hun  649.  8  See  §§  303,  337,  374. 

5  State  v.  Turner,  106  Mo.  272,  17  S.        9  England  v.  State,  89  Ala.  76,  78. 
W.  Rep.  304.  10  Fort  v.  State,  52  Ark.  180, 11  S.W. 

6Gilmore  v.  State,  99  Ala.  154,  13  Rep.  959;  People  v.  Block,  60  Hun 
So.  Rep.  536.  583,  15  N.  Y.  Supp.  229.  The  question, 


§  373  OFFENSES    AGAINST    HUMAN     HABITATIONS.  435 

that  being  a  question  upon  which  any  man  of  common  under- 
standing is  qualified  to  express  an  opinion. 

A  view  of  the  premises  by  the  jurors  in  a  trial  for  burglary 
will  undoubtedly  aid  them  materially  in  determining  the  means 
employed  in  breaking  in,  and  whether  or  not  an  entrance  was 
gained  by  force.  As  the  rules  and  principles  which  regulate 
and  govern  the  taking  of  a  view  are  elsewhere  fully  elucidated 
no  extended  discussion  of  them  is  necessary  in  this  place.1 

§  373.  Proof  of  constructive  breaking — Non-consent  of 
owner — Ownership  and  value  of  property. — The  breaking  must 
be  proved.  Proof  of  drawing  a  bolt,2  lifting  a  latch3,  window 
sash,4  pushing  open  a  closed  door,5  or  a  window  or  transom 
which  was  fastened,6  or  breaking  in  an  inner  door,7  or  opening 
it  with  a  key,8  will  sustain  an  allegation  of  breaking  in.  But 
evidence  that  an  entrance  was  made  (even  in  the  night-time)9 
through  an  open  door,10  or  transom,11  or  through  any  opening 
already  existing,  and  not  forcibly  made,  will  not  sustain  an  alle- 
gation of  breaking.  Proof  of  the  actual  use  of  force  in  breaking 
in  and  entering  is  not  always  necessary.  A  verdict  will  stand, 
though  it  be  not  shown  affirmatively  that  the  premises  were 
locked  during  the  period  in  which  the  breaking  in  must  have 
occurred,  and  the  only  proof  is  that  property  was  missed  from  a 
building,  such  as  a  stable,  in  which  horses  were  confined,  which 

"How  did  the  accused  get  in?"  is  not  v.    Conners  (Iowa,  1896),   64   N.   W. 

leading.  Vallerealt?. State  (Tex. ,1892),  Rep.  295. 

20  S.  W.  Rep.  557;  State  v.  Moore,  117  6Sims  v.   State,   136  Ind.   358,  360; 

Mo.  395,  401,  22  S.  W.  Rep.  1086.  State  v.  Moore,  117  Mo.  395,  22  S.  W. 

1  See  §§  229-232.  Rep.  1086. 

2  Kent  v.  State,  84  Ga.  438.  7  Daniels  v.  State,  78  Ga.  98. 

8  State  v.  O'Brien,  81   Iowa  93,   95;  8  Hale  P.  C.  553;    State  v.  Scripture, 

State  v.   Groning,   33    Kan.    18,    21;  42  N.    H.   485;    Lowder  v.   State,   63 

Carter  v.  State,  68  Ala.  96,   97;  Mc-  Ala.  143,  146. 

Court  v.  People,  64  N.  Y.  583.  9  Williams  v.  State  (Tex.,  1890),  13 

4  Frank  v.  State,  39  Miss.  705,  715.  S.  W.  Rep.  609. 

5  People  v.  Nolan,  22  Mich.  229,  235;  10Costello  v.  State,  21   S.  W.   Rep. 
State  v.  Reid,  20  Iowa  413,   421,  422;  360. 

Mason  v.  People,  26  N.  Y.  200;  State        "  McGrath  v.  State,  25  Neb.  780. 


436 


CRIMINAL    EVIDENCE. 


§374 


would  have  escaped  had  not  the  door  been  locked.1  Where  a 
building  was  left  apparently  unoccupied,  no  presumption 
obtains  that  a  person  found  in  it,  attempting  to  commit  a 
felony,  had  not  broken,  but  had  secreted  himself  therein.2 
The  entrance  must  have  been  without  the  owner's  consent  to 
constitute  a  burglary.  Non-consent  need  not  be  proved  by 
direct  evidence,  but  may  be  inferred  from  the  circumstances.8 
If  the  accused  was  rightfully  on  the  premises,  having  entered 
by  the  permission  or  command  of  the  owner,  or  of  some  per- 
son who  had  the  right  to  permit,4  or  command  him,  and  stole 
while  there,  his  offense  is  larceny  only.5  Hence,  any  evidence 
is  relevant  which  tends  to  prove  or  disprove  the  fact  that  the 
entrance  was  made  with  the  owner's  consent.  The  ownership 
of  the  property  stolen,6  its  value,7  the  number  of  articles 
taken,8  the  ownership  of  the  building  broken  into,9  or  the  date 
of  the  burglary10  is  not  an  essential  element  of  the  crime. 
These  facts,  therefore,  need  not  be  proved  precisely  as  alleged. 

§  374.    Correspondence  of  foot-prints  with  foot-wear  of  ac- 
cused.— The  presence  of  recently  made  and  unaccounted  for 


1  State  v.  Warford,  106  Mo.  55,  60, 
61. 

2  United  States  v.  Lantry,  30  Fed. 
Rep.  232. 

3  Van  Walker  v.  State,  33  Tex.  Cr. 
Rep.  359;  State  v.  Hayes,  105  Mo.  76, 
84.  A  detective  employed  to  discover 
persons  suspected  of  burglary,  ingra- 
tiated himself  into  the  confidence  of 
the  defendants,  loaned  them  money 
and  finally  suggested  that  they  should 
engage  in  burglary.  He  then  ar- 
ranged with  the  owner  of  the  build- 
ing that  marked  money  should  be 
placed  in  a  safe,  and  having  made  the 
defendants  drunk  he  took  them  to 
the  building,  opened  the  safe  and 
taking  out  the  money  handed  it  to 
them,  and  it  was  divided  among  the 
party.  As  the  entrance  was  with  the 
owner's  consent,   it  was  held  that  a 


conviction  of  burglary  could  not  be 
sustained.  Love  v.  People,  160  111. 
501,  43  N.  E.  Rep.  710. 

4  People  v.  McCord,  76  Mich.  200. 

5  Colbert  v.  State,  91  Ga.  705,  17  S. 
E.  Rep.  840.  Contra,  People  v.  Barry, 
94  Cal.  481,  483. 

6  State  v.  Tyrrell,  98  Mo.  354 ;  Brown 
v.  State,  72  Miss.  990;  People  v.  Ed- 
wards, 59  Cal.  359;  States.  Hutchin- 
son, 111  Mo.  257,  263,  20  S.  W.  Rep. 
34. 

7  Farley  v.  State,  127  Ind.  419,  26  N. 
E.  Rep.  898. 

8  Johnson  v.  Com.,  87  Ky.  189,  7  S. 
W.  Rep.  927. 

9  State  v.  Lee  (Iowa,  1896),  64  N. 
W.  Rep.  284;  States  Porter  (Iowa, 
1896),  66  N.  W.  Rep.  745. 

10  State  v.  Dawkins,  32  S.  Car.  17,  10 
S.  E.  Rep.  772. 


§374 


OFFENSES    AGAINST    HUMAN    HABITATIONS. 


437 


foot-prints  of  man,1  or  boast,2  or  of  wagon-tracks,3  in  the  cur- 
tilage of  a  house  which  has  been  entered,  or  on  a  road  leading 
to  it,  may  always  be  considered  in  determining  whether  a  bur- 
glary has  been  committed.  As  the  accused  must  not  be  com- 
pelled to  furnish  evidence  incriminating  himself,  or  to  testify 
against  himself,  he  can  not  be  compelled  to  submit  to  a  com- 
parison of  foot-prints  in  open  court.4  Nor  can  the  accused  be 
compelled  to  place  his  foot  in  a  shoe-track  found  in  the  vicin- 
ity of  the  crime.  His  refusal  to  do  so  can  neither  be  proved 
against  him  nor  commented  on  by  counsel,5  while,  generally, 
if  he  is  forcibly  compelled  to  do  so,  a  witness,  who  was  pres- 
ent at  the  comparison,  can  not  testify  to  the  results.6  A 
distinction,  however,  was  made  where  the  officer  having  charge 
of  the  prisoner  took  off  his  shoes  without  his  consent  and 
compared  them  with  the  tracks.  The  officer  was  allowed  to 
testify  to  the  results,  the  court  basing  its  ruling  on  the  admitted 
right  of  police  officials  to  search  the  clothing  of  prisoners  and 
to  testify  to  what  they  find.7  The  accused  may  waive  his 
rights  and  submit  to  a  voluntary  comparison,8  by  putting  his 
foot  in  tracks  found  in  the  neighborhood  of  the  crime.9  His 
offer  to  place  his  foot  or  shoe  in  the  foot-prints  may  be  proved 
in  his  favor,10  but  if  he  does  so  he  can  not  object  to  evidence 


England  v.  State,  89  Ala.  76. 

2  Miller  v.  State,  91  Ga.  186,  16  S.  E. 
Rep.  985. 

8  Bryan  v.  State,  74  Ga.  393, 394. 

4  In  Stokes  v.  State,  5  Baxt.  (Tenn.) 
619,  621,  the  conviction  was  reversed 
because  the  state  was  permitted  to 
bring  a  pan  of  mud  in  court  and  to 
request  defendant  to  place  his  foot 
in  it.  The  court  said  :  "The  pris- 
oner is  asked  in  the  presence  of  the 
jury  to  make  evidence  against  him- 
self. The  court  should  not  have  per- 
mitted the  pan  of  mud  to  have  been 
brought  before  the  jury  and  the  de- 
fendant asked  to  put  his  foot  in  it. 
The  jury  was  improperly  influenced. 
And  it  is  no  sufficient  answer  that  the 


judge  afterwards  told  them  his  refusal 
to  put  his  foot  in  the  mud  was  not  to 
be  taken  as  evidence  against  him." 
Cf.  Walker  v.  State,  7  Tex.  App.  245. 

5  See,  ante,  §§303,  337,  372. 

6  Day  v.  State,  63  Ga.  667. 

'State  v.  Graham,   74  N.  Car.  646, 
649;  Myers  v.  State,  97  Ga.  76,  25  S 
E.  Rep.  252.    The  court  declined 
decide  whether  the  policeman  cou 
compel  a  prisoner  to  place  his  foot 
the  track. 

8  People  v.  Mead,  50  Mich.  22SF 

9  Burks  v.  State,  92  Ga.  461,  17'&'  E. 
Rep.  6Ht. 

10Bouldin  v.  State,  8  Tex.  App.  332, 
335.  Contra,  Potter  v.  State,  92  Ala. 
37,  40,  9  So.  Rep.  402. 


0 


438 


CRIMINAL    EVIDENCE. 


§  375 


that  it  seemed  to  fit.1  A  witness  who  has  measured  the  tracks 
of  man  or  beast  and  compared  his  measurements  with  the  foot- 
wear of  the  accused,  or  of  a  horse  owned  by  him,  may  testify 
to  the  results  and  may  state  that  in  his  opinion  a  correspondence 
exists  in  size  and  shape  2 

A  witness  can  not  testify  that  he  thought  when  he  first  saw 
the  tracks,  and  still  believes,  they  were  made  by  the  defendant. 
This  is  only  an  expression  of  an  opinion  upon  a  question  prop- 
erly to  be  determined  by  the  jury.3  The  accused  may  intro- 
duce any  evidence  tending  to  show  that  it  is  physically 
impossible  that  he  made  the  tracks,4  or  that  he  had  never  worn 
or  possessed  a  shoe  that  would  fit  them.5 

§  375.    Burglarious  tools  iu  possession  of  the  accused. — It 

may  usually  be  shown  that  burglars'  tools  were  found  on  the 
person  of  the  accused,  in  his  dwelling,  in  a  trunk  shown  to  be 
his,  or  in  his  constructive  possession  and  control  at  or  about  the 
time  of  his  arrest,  particularly  where  it  is  shown  that  such 
tools  were  used  in  the  perpetration  of  the  crime.6     All  the  de- 


1  Potter  v.  State,  92  Ala.  37,  40,  9 
So.  Rep.  402. 

2  People  v.  Wolcott,  51  Mich.  612, 
615;  Com.  v.  Pope,  103  Mass.  440; 
Harris  v.  State,  84  Ga.  269;  State  v. 
Eeitz,  83  N.  Car.  634,  636;  Cooper  v. 
State,  88  Ala.  107,  110;  Miller  v.  State, 
91  Ga.  186,  16  S.  E.  Rep.  985. 

3  State  v.  Green,  40  S.  Car.  328, 18  S. 
E.  Rep.  933;  Collins  v.  Com.  (Ky., 
1894),  25  S.  W.  Rep.  743,  745 ;  State  v. 
Senn,  32  S.  Car.  392,  400. 

4  State  v.  Melick,  65  Iowa  614,  615. 

5 The  well-known  instinct  possessed 
by  certain  breeds  of  dogs,  commonly 
known  as  bloodhounds,  enabling  them 
to  track  persons  or  objects  wholly  by 
their  sense  of  smell,  has  caused  their 
employment  in  tracking  accused  per- 
sons from  the  earliest  times.  The 
exceptional  keenness  of  scent,  sagac- 
ity and  capacity  for  training  of  these 
animals,  and  their  perseverance  and 


intelligence  in  following  the  fugitive 
are  well  known.  And,  however  we 
may  doubt  the  humanity  of  employing 
such  ferocious  animals  to  detect  and 
apprehend  criminals,  there  can  be  no 
doubt  that  the  results  often  obtained 
are  in  the  main  to  be  relied  on.  So, 
where  it  is  shown  that  a  dog  has  been 
set  upon  a  recent  track,  and  has  fol- 
lowed it  to  the  habitation  of  the 
accused,  there  can  be  no  objection  to 
permitting  a  witness,  who  has  a  per- 
sonal knowledge  of  the  facts  of  the 
tracking,  and  who  can,  at  the  same 
time,  testify  to  the  intelligence,  train- 
ing and  purity  of  breed  of  the  hound, 
to  testify  to  the  results  of  the  pursuit 
and  to  where  the  animal  went  and 
what  was  found  there.  State  v.  Hall, 
3  Ohio  N.  P.  125;  Simpson  v.  State 
(Ala.,  1896),  20  So.  Rep.  572. 

6 Peoples. Winters,  29  Cal.  658;  Peo- 
ple v.  Hope,   62  Cal.   291 ;  People  v. 


§37G 


OFFENSES    AGAINST    HUMAN    HABITATIONS. 


439 


tails  of  the  finding,  including  the  declarations  of  the  accused, 
may  be  proved,  and  it  is  immaterial  that  the  tools  found  were 
not  adapted  to  the  burglarious  act  alleged.'  K  may  also  be  bdowe 
that  burglars'  tools  similar  to  others  found  in  the  defendant's 
possession  were  discovered  in  the  premises  which  bad  been 
burglariously  entered.'  The  purpose  and  object  of  the  posses- 
sion of  articles  or  tools  which,  though  usually  employed  for 
lawful  purposes,  may  be  used  by  burglars,  are  always  for  the 
jury.3 

§  376.  Other  burglarious  acts. — Evidence  that  the  defen- 
dant had  committed,  or  had  planned  to  commit,4  similar  of- 
fenses on  the  same  or  on  other  premises5  is  admissible,  when  the 
circumstances  of  time  and  place  attendant  upon  both  crimes  are 
connected  and  form  a  part  of  one  criminal  system  or  transac- 
tion.6 Evidence  of  a  separate  and  distinct  burglary  is  not  ad- 
missible7 unless  introduced  solely  to  prove  the  defendant's 
whereabouts8  on  the  night  of  the  crime  in  issue. 

§  397.    The  felonious   intention  present  in  entering. — The 

entrance  must  have  been  made  with  a  felonious  and  unlawful 
intention.  The  intention  of  the  accused  to  commit  some  fel- 
ony in  the  premises  broken  in  must  be  shown,9  specifically,  as 
alleged  in  the  indictment.10    The  fact  that  a  felony  was  actually 


Wilson,  7  App.  Div.  326;  40  N.  Y. 
Supp. 107. 

^ish.  Cr.  Proc,  §  151;  Com.  v. 
Tivnon,  8  Gray  (Mass.)  375;  Knicker- 
bocker v.  People,  43  N.  Y.  177;  Frank 
v.  State,  39  Miss.  705. 

2  People  v.  Hope,  62  Cal.  291,  295. 

3 Reg.  r.  Oldham,  2  Den.  C.  C.  R.  472. 

4  Dawson  i>.  State,  32  Tex.  Cr.  Rep. 
535,  25  S.  W.  Rep.  21. 

5 Marshall  v.  State  (Tex.,  1893),  22 
S.  W.  Rep.  878. 

6Frazier  v.  State,  135  Ind.  38,  40,  34 
N.  E.  Rep.  817,  State  v.  Robinson,  35 
S.  Car.  340,  14  S.  E.  Rep.  766 ;  State  v. 
Weldon,  39  S.  Car.  318,  17  S.  E.  Rep. 
688;  People  v.  Mead,  50   Mich.  228; 


Eley  v.  State  (Tex.,  1890),  13  S.  W. 
Rep.  998;  ante,  §  88,  et  seq. 

7  People  r.  McNutt,  64  Cal.  116; 
People  v.  Greenwall,  108  N.  Y.  296, 
301  (murder);  People  v.  White,  3 
N.  Y.  Crim.  Rep.  366. 

8 People  v.  Mead.  50  Mich.  228; 
State  v.  Fitzsimon,  18  R.  I.  236,  27 
Atl.  Rep.  44<>,  44S. 

9  Ashford  v.  State,  36  Neb.  38,  40,  53 
N.  W.  Rep.  1036;  State  v.  Meche,  42 
La.  An.  273. 

10  Miller  r.  State,  28  Tex.  App.  445, 
446;  State  u  Taylor,  136  Mo.  66,37 
S.  W.  Rep.  907;  Moore  v.  State  (Tex., 
1897),  37  S.  W.  Rep.  747.  The  intent 
is  a  question  for  the  jury.     Woodward 


440  CRIMINAL  EVIDENCE.  §  378 

committed  by  the  accused  in  the  house  is  strong  prima  facie 
evidence  that  he  entered  it  with  a  felonious  intention.  If  the 
entrance  and  the  commission  of  a  felon}'  on  the  premises  are 
shown,  the  jury  will  be  justified  in  inferring  a  criminal  inten- 
tion in  entering.1  The  burglarious  intention  may  be  inferred 
from  many  other  circumstances  in  evidence.  So,  if  it  is 
proved  that  the  accused  induced,2  or  attempted  to  induce,3  the 
custodian  of  the  premises  to  absent  himself,  or  entered  the 
building  after  dark,1  and  was  found  there  with  burglars'  tools, 
or  keys  which  will  open  the  doors  of  the  building,  in  his  pos- 
session,5 or  was  discovered  engaged  in  ransacking  a  trunk,6 
or  in  putting  aside  articles  of  value,7  and,  when  discovered, 
made  a  hasty  and  immediate  flight8  through  an  open  window,9 
or  attempted  to  conceal  himself,10  or  was  found  running  along 
a  neighboring  road  soon  after  a  burglary  had  been  attempted,11 
a  criminal  intent  may  be  inferred.  Hence  these  circumstances 
and  others  of  a  similar  character  are  relevant,  with  other  evi- 
dence, to  show  a  burglarious  intent.  The  accused  must  be 
allowed  to  account  for  his  presence  in  the  house,  and  his  ex- 
planation may  be  considered  by  the  jury  in  the  light  afforded 
by  the  other  evidence.12 

§  378.    Presumption  from  possession  of  stolen  property. — It 

has  been  held  that  a  person  in  whose  possession  money  or 
goods  were  found,  recently  taken  from  premises  which  had  been 

v.   State,  54   Ga.  106,  107;  Franco  v.        5  People  v.  Morton,  4  Utah  407,  408; 

State,  42  Tex.    276,   281;    Clifton  v.  State   v.  Christmas,  101  N.  Car.  749, 

State,  26  Fla.  523,  525 ;  Com.  v.  Wil-  756. 

Hams,  2  Cush.  (Mass.)  582;  Peoples.        €  State  v.   Anderson,   5   Wash.   St. 

Hope,  62  Cal.  291,  296.     A  specific  in-  350. 

tent  to  commit  larceny  may  be  in-        7  Clifton  v.  State,  26  Fla.  523,  525. 

ferred   from  proof  of  a  breaking  in,        8  Hill  v.  Com.  (Ky.),  15  S.  W.  Rep. 

and  of  the  presence  of  valuables  in  870. 

the  house.    Steadman  v.  State,  81  Ga.        9  Alexander  v.  State,  31  Tex.  Crim. 

736.  Rep.  359,  362. 

1  Stokes  v.  State,  84  Ga.  258,  263.  10  People  v.  Hagan,  60  Hun  577,  14 

2  Wright  v.  Com.,  82  Va.  183,  187.  N.  Y.  Supp.  233. 

3  People  v.  Calvert,  67  Hun  649.  u  Steadman  ».  State,  81  Ga.  736. 

4  State  v.  Fox,  80  Iowa  312  45  N.  W.        12  People  v.  Griffin,  77  Mich.  585,  587. 
Rep.  874. 


§  378  OFFENSES    AGAINST    HUMAN    II A  IMTATIONS.  441 

broken  in,  would  be  presumed  from  possession  alone  as  matter 
of  law,  at  least  in  the  absence  of  a  valid  explanation,  guilty 
not  only  of  larceny,  but  of  the  burglary  as  well.1  The  large 
majority  of  the  cases,  however,  while  admitting  that  recent 
possession  alone  may  in  some  circumstances  create  a  presump- 
tion of  larceny,  repudiate  this  doctrine  as  regards  burglary. 
The  true  rule  doubtless  is  that  the  mere  possession  of  stolen 
property  creates  no  presumption  of  law  that  the  person  in 
whose  possession  it  was  found  committed  the  burglary  in 
which  they  were  taken.  The  possession  is  a  circumstance  to 
go  to  the  jury,  and  its  weight  is  for  them.  The  corpus  delicti 
of  the  burglary,  that  is,  the  breaking  in  and  entering,  must  be 
proved  by  independent  evidence  and  can  not  be  presumed  from 
evidence  of  mere  possession.  If  it  appears  that  a  burglary 
was  in  fact  committed,  the  possession  by  the  accused  is  a  cir- 
cumstance from  which,  in  connection  with  all  the  evidence, 
the  jury  may  presume  as  a  matter  of  fact  that  he  committed  it.2 
But  in  burglary,  as  in  the  kindred  offense  of  larceny,  the  pos- 
session of  the  defendant  must  be  personal  and  exclusive  and 
unexplained  and  must  involve  a  conscious  assertion  of  owner- 
ship by  him.  He  should  always  be  permitted  to  explain  how 
he  obtained  the  property,  and  if  his  explanation  is  reasonable 

'Com.  v.  Millard,  1  Mass.  6.  400;  People  v.  Titherington,  59  Cal. 

"King?;.  State  (Ga.,  1897),  26  S.  E.  598;  People  v.  Cline,  74  Cal.  575;  State 

Eep.  480;   State  v.  Conway,  56  Kan.  v.  Frahm,  73  Iowa  355,  35  N.  W.  Rep. 

682,  44  Pac.   Rep.  627;  Metz  v.  State.  451  ;  State  v.  Rivers,  68  Iowa  (',11,  27 

46  Neb.  547,  65  N.  W.  Rep.  90;  State  N.  W.   Rep.  781  ;  People  >•.  Wood,  99 

r.   Ham   (Iowa,  1896),  66  N.  W.  Rep.  Mich.  620;  Stuart  v.  People,  42  Mich. 

1038;  Porterfield  v.  Com.,  91  Va.  801;  255;    State    v.   Moore,    117    Mo.    395; 

State  v.  Blue,  136  Mo.  41,  37  S.  W.  Brooks  v.  State,  96  Ga.  353;  State  v. 

Rep.  796;  State  v.  Wilson  (Mo.,  1897),  Rights,  82  N.  Car.  675,  678;   Methard 

39  S.  W.  Rep.  80 ;  State  v.  Jennings,  v.   State,   19  Ohio   St.   363;  Davis  v. 

79   Iowa  513;  State  v.  Reid,  20  Iowa  State,  76  Ga.  17;  Stater.  Raymond,  46 

413,  420,  421  ;  State  ?\  Owsley.  Ill  Mo.  Conn.   34"> ;    Magee   0.  People,  139  111. 

450;  Neubrandt  v.  State,  53  Wis.  89,  138,  28  N.  E.  Rep.   1077;  Gravely  v. 

90;  People  r.   Carroll,  54  Mich.  334;  Com.,  86  Va.  396,  401 .  403;  Wright  r. 

Dawson  ».  State,  32 Tex.  Cr.  Rep.  535;  Com.,  82  Va.  183,  188;  Ryan  i  .  state. 

Goldsmith   r.   State,  32  Tex.  Cr.  Rep.  83  Wis.  486:  Davis  p.  People,  I   Park. 

112;  Threadgill  v.  State,  32  Tex.  Cr.  Cr.  Rep.  447,  452 ;  Sahlinger  v.  People, 

Rep.  451 ;  People  v.   Ah  Sing,  59  Cal.  102  111.  241 ;  and  see  ante,  §  378,  et  seq. 


442 


CRIMINAL    EVIDENCE. 


§  379 


and  probable,  he  should  be  acquitted.1  Property  brought  from 
the  building  entered  at  the  time  of  the  trial  is  admissible  to 
identify  similar  property  found  in  the  defendant's  house.2 

§  379.    Articles  stolen  from  the  premises  as  evidence. — The 

non-production  in  evidence  of  articles  alleged  to  have  been 
stolen,  is  not  ground  for  a  new  trial  when  the  accused  does  not 
expressly  demand  their  production  and  their  identity  is  not  dis- 
puted.3 But  articles  found  in  defendant's  possession  and  taken 
from  him  by  force,  which  are  alleged  to  have  been  taken  by 
the  burglar,  may,  if  identified  by  the  owner,4  or  by  some  other 
witness,  and,  it  seems,  where  the  evidence  of  identity  is  contra- 
dictory,5 be  inspected  by  the  jury.6  The  jury  may  compare  ar- 
ticles of  wearing  apparel  worn  by  the  defendant  when  arrested 
with  clothing  belonging  to  an  inmate  of  the  building  which 
was  entered,  where  a  striking  similarity  in  style  and  numbers 
renders  them  relevant.7 


'See  cases  in  last  note,  also,  Hays 
v.  State,  30  Tex.  App.  472,  17  S.  W. 
Rep.  1063;  Morgan  v.  State,  25  Tex. 
App.  513,  8  S.  W.  Rep.  487;  Field  v. 
State,  24  Tex.  App.  422,  6  S.  W.  Rep. 
200;  Jackson  v.  State,  28  Tex.  App. 
143,  12  S.  W.  Rep.  701 ;  State  v.  Ows- 
ley, 111  Mo.  450;  Payne  v.  State,  21 
Tex.  App.  184 ;  ante,  §  378,  et  seq.  Pos- 
session of  stolen  goods,  though  unex- 
plained and  exclusive,  has  no  weight 
as  evidence  if  not  recent  or  proved  af- 
ter the  offense.  Whether  possession 
is  recent  depends  on  the  circumstances 
of  each  case  and  is  usually  for  the  jury, 


though,  in  exceptional  cases,  the  evi- 
dence may  so  preponderate  that  the 
court  may  decide.  White  v.  State,  72 
Ala.  195. 

2  People  v.  Van  Dam  (Mich.,  1896), 
65  N.  W.  Rep.  277. 

3  Johnson   v.  Com.   (Ky.,  1891),   15 
S.  W.  Rep.  671. 

4  Walker  v.  State,  97  Ala.  85,  12  So. 
Rep.  83. 

5  Jackson  v.  State,  28  Tex.  App.  370; 
State  v.  Groning,  33  Kan.  18,  21. 

6  See  ante,  §  47. 

'Woodruff  v.  State  (Tex.,  1891),  20 
S.  W.  Rep.  573. 


CHAPTER  XXVII. 


SEXUAL    CRIMES. 


§  380.    Adultery  and  fornication— De- 
fined and  distinguished. 

381.  Evidence  to  prove  the  inter- 

course— Acts      of     adultery 
other  than  that  charged. 

382.  Competency  of  accomplice. 

383.  Character  of  evidence  to  prove 

the  fact  of  marriage. 

384.  Lascivious  cohabitation  or  liv- 

ing in  unlawful  cohabitation. 

385.  Seduction  defined. 

386.  The  sexual  intercourse — Rele- 

vancy of  evidence. 

387.  Evidence  to   prove  the  prom- 

ises. 

388.  Relevancy  of  the  previous  con- 

duct of  the  parties. 

389.  The  examination,    credibility 

and     corroboration    of    the 
prosecutrix. 

390.  Character  of  corroborative  evi- 

dence required. 

391.  The  marriage  of  the  accused  to 

the  seduced  female. 

392.  The    chastity  of  the  female— 

What    constitutes    chastity 
and  how  it  may  be  proved. 

393.  The   presumption  of  chastity. 

394.  Defilement  of  female  ward  or 

servant. 


§395. 
396. 

397. 


398. 


399. 

400. 
401. 
402. 

403. 


404. 


405. 


406. 


Incest  defined. 

Evidence  to  show  the  sexual 
intercourse. 

The  kinship  existing  between 
the  parties — Evidence  of  ac- 
complices. 

Bigamy — The  intent — Invalid- 
ity or  annulment  of  former 
marriage. 

Presumption  and  proof  of 
death  of  spouse. 

Competency  of  wife  of  accused. 

Absence  of  lawful  spouse. 

Proof  of  marriage  by  eye-wit- 
ness or  certificate. 

Proof  of  marriage  by  reputa- 
tion, cohabitation  and  con- 
duct. 

The  admissions  of  the  accused 
as  evidence  to  prove  the 
marriage  —Primary  evidence 
of  the  ceremony  wrhen  re- 
quired. 

Marriage  certificates  and  tran- 
scripts of  records  as  evi- 
dence-Presumption of  valid- 
ity— Venue. 

Bigamous  cohabitation. 


§  380.    Adultery  and  fornication — Defined  and  distinguished. 

— Fornication  is  sexual  intercourse  between  a  man,  married  or 

single,  and  an  unmarried   woman.1     Adultery  is  sexual   inter- 

1  State  v.  Chandler,  96  Ind.  591,  593. 

(443) 


444 


CRIMINAL    EVIDENCE. 


§381 


course  between  a  married  person  and  one  of  the  opposite  sex, 
whether  married  or  single.1 

§  381.  Evidence  to  prove  the  intercourse — Acts  of  adultery 
other  than  that  charged. — Direct  evidence  of  the  act  of  sexual 
intercourse  can  seldom  be  obtained.  Hence,  evidence  of  all 
the  circumstances  of  the  parties,  their  relations  to  one  another, 
their  domestic  and  social  surroundings,  their  acquaintance, 
conduct  and  familiarity,  the  facts  that  they  went  out  together 
and  visited  each  other,  and  often  expressed  a  desire  to  be  to- 
gether are  relevant.2  Improper  familiarities  and  adulterous 
acts  between  the  same  parties  prior,3  or  subsequent  to,4  the  act 
charged,  but  not  too  remote,5  or,  if  remote,  connected  with  it 
so  as  to  form  a  part  of  a  continuous  course  of  conduct,  may  be 
shown  for  the  purpose  of  bringing  out  the  relations  and  adul- 
terous disposition  of  the  defendant.6 


1  Miner  v.  People,  58  111.  59 ;  State  v. 
Fellows,  50  Wis.  65;  Hood  v.  State, 
56  Ind.  263,  271,  274 ;  Helfrich  v.  Com., 
33  Pa.  St.  68 ;  Cook  v.  State,  11  Ga.  53 ; 
State  v.  Wilson,  22  Iowa  364 ;  State  v. 
Donovan,  61  Iowa  278;  State  v.  Clark, 
54  N.  H.  456;  White  v.  State,  74  Ala. 
31;  State  v.  Taylor,  58  N.  H.  331; 
Walkers.  State,  104  Ala.  56;  Banks 
v.  State,  96  Ala.  78. 

2  State  v.  Brecht,  41  Minn.  50,  55; 
People  v.  Girdler,  65  Mich.  68;  Starke 
v.  State,  97  Ga.  193,  23  S.  E.  Rep.  832; 
State  v.  Ean,  90  Iowa  534;  State  v. 
Brink,  68  Vt.  659,  35  Atl.  Rep.  492. 

3  Cross  v.  State,  78  Ala.  430,  433; 
People  v.  Jenness,  5  Mich.  305,  322, 
324 ;  Brevaldo  v.  State,  21  Fla.  789.  See, 
also,  §  388. 

4  State  v.  Stubbs,  108  N.  Car.  774,  13 
S.  E.  Rep.  90. 

5  People  v.  Hendrickson,  53  Mich. 
525,  526. 

6  State  v.  Witham,  72  Me.  531; 
Owens  v.  State,  94  Ala.  97 ;  State  v. 
Henderson,  84  Iowa  161,  50  N.  W. 
Rep.  758;   State  v.   Briggs,   68  Iowa 


416,  423;  State  v.  Bridgman,  49  Vt 
202;  State  v.  Marvin,  35  N.  H.  22 
Bodifield  v.  State,  86  Ala.  67,  5  So 
Rep.  559;  Com.  v.  Nichols,  114  Mass 
285,  288;  State  v.  Potter,  52  Vt.  33; 
Com.  v.  Merriam,  14  Pick.  (Mass.) 
518,  520;  Com.  v.  Morris,  1  Cush. 
(Mass.)  391,  394;  Com.  v.  Lahey,  14 
Gray  (Mass.)  91,  93;  Richardson  v. 
State,  37  Tex.  346;  Cole  v.  State,  6 
Baxter  (Tenn.)  239;  State  v.  Way,  5 
Neb.  283 ;  Searls  v.  People,  13  111.  597. 
Cf.  State  v.  Donovan,  61  Iowa  278, 
282.  "  In  the  case  of  an  indictment 
for  such  intercourse,  previous  famil- 
iarity, and  the  general  or  habitual 
submission  of  the  female  to  his  sexual 
embraces,  must,  in  the  nature  of 
things,  tend  to  render  it  more  proba- 
ble that  like  intercourse  took  place  on 
the  occasion  charged.  Such  is  the 
force  and  ungovernable  nature  of  this 
passion,  and  so  likely  is  its  indulgence 
to  be  continued  between  the  same 
parties,  when  once  yielded  to,  that  the 
constitution  of  the  human  mind  must 
be  entirely  changed  before  any  man's 


§  382  SEXUAL    CRIMES.  445 

§  382.  Competency  of  accomplice. — The  party  with  whom 
the  adultery  was  committed  is  always  a  competent  witness,1 
though,  as  he  or  she  is  an  accomplice,2  a  conviction  may  not 
be  had  upon  his  or  her  uncorroborated  testimony,8  nor  is  her 
confession  admissible  against  the  accused  unless  connected 
with  his.4  Her  unchastity  is  immaterial,  but  evidence  to  show 
her  previous  bad  character,  as,  for  example,  that  she  was  a 
prostitute,  has  been  received  to  show  the  probability  of  the  in- 
tercourse.5 In  the  absence  of  a  statute  requiring  a  prosecution 
to  be  commenced  on  the  complaint  of  the  husband  or  wife,6 
this  fact  need  not  be  shown,7  nor  that  an  adulterous  cohabita- 
tion continued  during  all  the  period  as  charged,  if  it  existed 
during  any  portion  of  the  period.8 

§  383.    Character  of  evidence  to  prove  the  fact  of  marriage. 

— It  must  be  proved  that  one  of  the  parties  to  the  adultery  was 
married  at  the  time.9  A  much  stricter  degree  of  proof  is  re- 
quired to  show  marriage  in  criminal  proceedings  than  will 
suffice  in  a  civil  trial.10  Often  by  statute  the  marriage  certifi- 
cate is  made  prima  facie  evidence  of  the  marriage.  Such  a 
statute  does  not,  by  implication  alone,  exclude  other  proof,11 
and  the  introduction  of  the  certificate  must  always  be  supple- 
mented by  some  evidence  from  which  the  jury  may  identify 
the  party  named  therein  as  the  accused.12  The  certificate  should 

judgment  can  resist  the  force  of  such  v.  Andrews   (Iowa,   1896),  64  N.  W. 

an  inference  to  be  drawn  from  previ-  Rep.  404. 

ous   acts   of  intercourse."     People  v.  7  State  v.  Brecht,  41  Minn.  50. 

Jenness,  5  Mich.  305,  322.  8  Bailey  v.  State,  36  Neb.  808;  55  N. 

1  State  v.  Colby,  51  Vt.  291 ;  State  v.  W.  Rep.  241. 

Crowley,  13  Ala".  172.  9 Banks  v.  State,  96  Ala.  41,  11  So. 

2  State  v.  Scott,  28  Ore.  331,  42  Pac.     Rep.  404. 

Rep.  1.  10  See  post,  §§  402-405. 

3  People  v.  Hendrickson,  53  Mich.  u  People  ».  Stokes,  71  Cal.  263 ; 
525.  Thomas  v.  State  (Tex.),  26  S.  W.  Rep. 

4  State  v.  Mims,  39  S.  Car.  557,  17  724;  State  v.  Clark,  54  N.  H.  456,  560. 
S.  E.  Rep.  850.  12  State  v.  Brink,  68  Yt.  659,  35  Atl. 

5  Com.  v.  Gray,  129  Mass.  474,  476;  Rep.  492;  People  v.  Broughton,  49 
United  States  v.  Bredemeyer,  6  Utah  Mich.  339,  340;  State  v.  Brecht,  41 
143,  22  Pac.  Rep.  110.  Minn.  50,  53;  Wedgewood's  Case,  8 

6  State  v.  Stout,  71  Iowa  343;   State  Me.  75;  Peoples.  Ishani  (Mich.,  1896), 


446 


CRIMINAL    EVIDENCE. 


§383 


show  a  ceremony  performed  by  a  duly  authorized  official.  He 
will  be  presumed  to  have  acted  within  the  scope  of  his  author- 
ity.1 But  the  certificate  is  not  conclusive  of  all  facts  necessary 
to  constitute  a  valid  marriage.  Thus,  if  it  appears  that  one  of 
the  parties  was  under  age,  ratification  must  be  shown.2  The 
certificate  is  not  the  best  evidence,  even  when  admissible  by 
statute.3  The  ceremony  may  be  proved  by  the  testimony  of 
any  one  who  was  present  and  saw  it  performed.4  But  it  is  not 
enough  that  he  shall  testify  that  he  saw  a  ceremony  performed 
by  some  one.  He  ought  to  be  able  to  testify  that  all  the  cir- 
cumstances were  such  as  to  apparently  constitute  a  legal  mar- 
riage ceremon}'.5  Despite  some  uncertainty  in  the  early  cases, 
it  is  now  well  settled  that  the  marriage  of  the  accused  may  be 
proved  by  his  admissions,  oral  or  in  writing.  But  his  state- 
ment that  he  is  married  to  be  admissible  must  have  been  made 
voluntarily  and  with  deliberation.6 

A  lawful  marriage,  when  proved,  will  be  presumed  to  con- 
tinue until  the  contrary  is  shown.     The  fact  that  the  marriage 


67  N.  W.  Rep.  819.  In  a  prosecution 
for  adultery  the  husband  or  wife  of 
the  defendant  can  not  testify  for  the 
state  as  to  her  marriage  to,  or  cohabi- 
tation with,  him  or  her.  People  v. 
Isham  (Mich.,  1896),  67  N.  W.  Rep. 
819;  People  v.  Imes  (Mich.,  1896),  68 
N.  W.  Rep.  157 ;  State  v.  Russell,  90 
Iowa  569 ;  State  v.  Vollander,  57  Minn. 
225;  Com.  v.  Sparks,  7  Allen  534,535, 
536 ;  State  v.  Welch,  26  Me.  30 ;  State 
v.  Gardner,  1  Root  (Conn.)  485;  State 
v.  Berlin,  42  Mo.  572,  577.  See  ante, 
§186. 

1  State  v.  Clark,  54  N.  H.  456,  459. 

2  People  v.  Bennett,  39  Mich.  208, 
209. 

3  State  v.  Marvin,  35  N.  H.  22,  27,  2 
Greenl.  on  Ev.,  §  461, 1  Phil.  Ev.,  410. 

4 States.  Clark,  54  N.  H.  456,560; 
Owens  v.  State,  94  Ala.  97, 10  So.  Rep. 


669;  Com.  v.  Littlejohn,  15  Mass.  163; 
Com.  v.  Morris,  1  Cush.  (Mass.)  391, 
394;  Chew  v.  State,  23  Tex.  App.  230. 
Some  of  the  cases  hold  that  an  eye- 
witness, if  living,  must  be  produced. 
Com.  v.  Norcross,  9  Mass.  492,  493; 
Wood  v.  State,  48  Ga.  192;  Buchanan 
v.  State,  55  Ala.  154. 

5  State  v.  Hodgskins,  19  Me.  155, 
157. 

6  People  v.  Imes  (Mich.,  1896),  68  N. 
W.  Rep.  157;  Ham's  Case,  11  Me. 
391,  396;  State  v.  Hodgskins,  19  Me. 
155,  157;  State  v.  Libby,  44  Me.  469; 
State  v.  Medbury,  8  R.  I.  543;  Com. 
v.  Holt,  121  Mass.  61.  A  photograph 
of  the  defendant,  with  an  indorse- 
ment in  his  handwriting  "  from  your 
dear  husband,"  has  been  received  as 
an  admission.  State  v.  Behrman,  114 
N.  Car.  797,  19  S.   E.  Rep.  220. 


§  384  SEXUAL    CRIMES.  447 

was  void,  or  had  been  terminated  by  death,  divorce  or  other- 
wise, is  always  relevant  in  adultery.1 

§  384.  Lascivious  cohabitation  or  living  in  unlawful  cohabi- 
tation.— It  must  appear  that  the  parties  lived  together  openly 
and  notoriously  as  though  husband  and  wife.  The  crime  of 
living  in  adultery  must  of  necessity  be  proved  by  circumstan- 
tial evidence.  The  mere  fact  that  the  parties  lived  together 
in  one  house  or  were  guilty  of  a  single  act,  or  even  of  several 
acts,  of  adultery,  is  not  enough.  They  must  live  together,  if 
only  for  a  short  time,  as  though  the  marriage  relation  existed, 
and  the  evidence  must  be  such  that  a  continuance  in  adultery 
may  be  inferred.2  There  need  not  be  direct  proof  of  even  a 
single  act  of  adultery.  The  crime  is  sufficiently  proved  by 
showing  circumstances  which  will  raise  the  presumption 
of  an  unlawful  intimacy,  and  the  continuance  of  sexual  and 
adulterous  intercourse.3  Thus  it  may  be  shown  that  the  defend- 
ant and  the  paramour  were  living  together  in  the  same  dwell- 
ing, that  the  woman  cooked  the  meals  and  performed  the 
usual  household  duties  of  a  wife,  that  both  ate  at  the  same 
table  and  occupied  the  same  room,  that  their  clothing  was 
mingled  in  the  wardrobe,  that  there  was  but  one  bed  in  the 

1  Banks  v.  State,  96  Ala.  41,  11  So.  2  State  v.  Chandler,  132  Mo.  155,  33 

Rep.  404.    The  burden  to  show  this  is  S.  W.  Rep.  797 ;  State  v.  Chandler,  96 

upon  the  defendant.   People  v.  Stokes,  Ind.   591,   593;  Wright  v.  State,   108 

71  Cal.  263;  State  v.  Weatherby,  43  Ala.   60,   18  So.   Rep.   941;    State  v. 

Me.  258,  263.     The   intermarriage   of  Miller,  42  W.  Va.  215,  24  S.  E.  Rep. 

the  parties  to  the  adultery  will  not  be  882;  Schoudel  v.  State,  57  N.  J.  L.  209. 

presumed.      If    they   are    jointly   in-  3  Brown  v.  State,  108  Ala.  18,  18  So. 

dieted  the   burden   of    proving  their  Rep.   811 ;    Searls    v.   People,    13   111. 

intermarriage  is  upon  them,  as  it  is  597;     Richardson    v.    State,  37  Tex. 

a  fact    peculiarly   within   their    own  346;  Pruner  v.  Com.,  82  Va.   115,  10 

knowledge.     State  v.  McDuffie,  107  N.  Va.  L.  J.  520;  Cranberry  v.  State,  61 

Car.  885;  State  v.  Pope,  109  N.  Car.  Miss.  440;  State  v.  Chandler,   96  Ind. 

849.     As  it  is  the   sexual  intercourse  591,   593;  Jackson  v.  State,  116   Ind. 

rather  than  the  intent  or  knowledge  464,  465;  People  v.  Gates,  46  Cal.  52; 

with   which  it   is   accompanied  that  Van  Dolsen  v.  State,  1  Ind.  App.  108, 

constitutes  the  crime,  it  is  not  neces-  110;  Bird  v.  State,  27  Tex.  App.  635, 

sary  to  prove  that  the  accused  did  or  11   S.  W.   Rep.  641 ;    Kahn  v.   State 

did  not  know  that  the  other  party  was  (Tex.,  1897),  38  S.  W.  Rep.  989. 
married.     Fox  v.  State,  3  Tex.  App. 
329,  30  Am.  Rep.  144. 


448  CRIMINAL  EVIDENCE.  §  385 

house,  and  that  each  spoke  of  the  other  as  though  the  mar- 
riage relation  existed  between  them. 

§  385.  Seduction  defined. — Seduction  may  be  defined  as  the 
persuading  or  inducing  a  woman  of  previous  chaste  character 
to  depart  from  the  path  of  virtue  by  any  species  of  arts,  per- 
suasions or  wiles  which  are  calculated  to  have  and  do  have 
that  effect,  and  which  result  in  her  ultimately  submitting  to 
the  sexual  embrace  of  the  accused.1 

§  386.    The   sexual   intercourse — Relevancy  of  evidence. — 

The  sexual  intercourse  must  be  proved,  and,  if  it  is  proved, 
the  accused  may  be  convicted  of  adultery,  though  a  promise  be 
not  proved.2  Any  evidence  admissible  to  prove  adultery  may 
be  received.  The  time  the  parties  were  together,  the  particular 
places  they  visited,  and  their  opportunities  to  indulge  in  inter- 
course without  detection  are  all  relevant.3  The  record  of  a  con- 
viction of  bastardy  secured  by  the  prosecutrix  against  the  de- 
fendant is  not  admissible  on  his  subsequent  trial  for  seduction. 
It  is  in  no  way  res  adjudicata  as  to  any  issue  involved.4 

§  387.  Evidence  to  prove  the  promise. — The  sexual  inter- 
course is  an  essential  element  of  the  seduction,  and  must  al- 

1  People  v.  Gibbs,  70  Mich.  425,  430,  cution  to  exhibit  a  very  young  infant 
38  N.  W.  Rep.  257,  260;  People  v.  De  to  the  jury,  as  directly  relevant  to 
Fore,  64  Mich.  693,  699.  "Where  prove  the  guilt  of  the  accused,  charged 
consent  is  given,  pending  a  virtuous  with  either  seduction  or  rape,  or 
engagement,  in  consequence  of  a  rep-  merely  to  corroborate  the  prosecutrix, 
etition  of  a  promise  to  marry,  already  because  of  a  supposed  resemblance 
made  and  accepted,  the  woman  yield-  between  the  child  and  accused.  State 
ing  in  reliance  on  the  plighted  faith  v.  Danforth,  48  Iowa  43.  See,  also, 
of  her  lover,  and  he  intending  that  Hanawalt  v.  State,  64  Wis.  84;  Risk 
she  shall  trust  and  be  deceived,  it  is  v.  State,  19  Ind.  152;  Reitz  v.  State, 
seduction."  Wilson  v.  State,  58  Ga.  33  Ind.  187;  Barnes  v.  State  (Tex., 
328,  331.  1897),   39   S.  W.    Rep.  684.      But   in 

2  Dinkey  v.  Com.,  17  Pa.  St.  126,  State  v.  Horton,  100  N.  Car.  443,  449, 
129;  Nicholson  v.  Com.,  91  Pa.  St.  it  was  held  that  a  child  might  be  ex- 
390,  392;  Hopper  v.  State,  54  Ga.  389;  hibited  to  the  jury  to  prove  the  sexual 
Disharoon  v.  State,  95  Ga.  351.  intercourse.      The  exact  date   of  the 

8  Bailey  v.  State  (Tex.,  1897),  38  S.  intercourse   is  immaterial.      State  v. 

W.  Rep.  185;  ante,  §  381.  Moore,  78  Iowa  494;  State  v.  McClin- 

4  State  v.  Wenz,  41  Minn.  196,  197.  tic,  73  Iowa  663,  665;  State  v.  Deitrick, 

It  is  not  proper  to  permit  the  prose-  51  Iowa  467,  472. 


§  388  SEXUAL    CRIMES.  449 

ways  be  proved  beyond  a  reasonable  doubt.  But  mere  illicit 
sexual  intercourse  alone  does  not  constitute  seduction.1  It 
must  appear  that  it  was  procured  by  some  artifice,  deception  or 
promise,  usually  an  unconditional  promise  of  marriage,  and 
that  it  was  solely  because  of  this  promise  that  the  female  was 
induced  to  surrender  her  virtue.2  What  evidence  will  justify 
the  jury  in  finding  that  the  intercourse  was  procured  by  a 
promise  depends  on  the  circumstances  of  each  case.3  The  evi- 
dence to  prove  the  making  of  a  promise  or  of  the  employment 
of  an  artifice  which  was  the  inducement  for  the  sexual  inter- 
course must  necessarily  take  a  wide  range.4 

The  promise  to  marry  need  not  be  proved  to  have  been  made 
in  any  particular  form  of  words.  It  is  enough  if  language  has 
been  used  implying  such  a  promise,  intended  to  convey  that 
meaning,  and  it  is  so  understood  by  the  woman.5  The  charac- 
ter and  intelligence  of  the  woman  must  be  considered.  What 
might  be  insufficient  to  overcome  or  deceive  the  mind  of  a  ma- 
ture and  educated  woman  might  succeed  in  the  case  of  a  young 
and  ignorant  girl.6 

§  388.    Relevancy  of  the  previous  conduct  of  the  parties. — 

The  conduct  of  the  parties  prior  to  the  alleged  seduction,  their 

1  People  v.  Gumaer,  4  App.  Div.  412.  State,  29  Ohio  St.  542,  546.     "To  es- 

2  State  v.  Knutson,  91  Iowa  549;  tablish  the  charge  of  seduction  it  must 
State  v.  Lingle,  128  Mo.  528;  State  v.  be  made  to  appear  that  the  inter- 
Crowell,  116  N.  Car.  1052;  Smith  v.  course  was  accomplished  by  some  ar- 
State,  107  Ala.  139,  18  So.  Rep.  306;  tifice.  Something  more  than  an  ap- 
Anderson  v.  State,  104  Ala.  83;  Pow-  peal  to  lust  or  passion  must  be 
ell  v.  State  (Miss.,  1896),  20  So.  Rep.  proved."  State  v.  Fitzgerald,  63  Iowa 
4;  State  v.  Sharp,  132  Mo.  165,  33  S.  268;  Powell  v.  State  (Miss.,  1896),  20 
W.  Rep.  795;  Barnes  v.  State  (Tex.,  So.  Rep.  4. 

1897),  39  S.  W.  Rep.  684;  People  v.  3 People  v.  Wallace,  109  Cal.  611,  42 

De  Fore,  64  Mich.  693,  31  N.  W.  Rep.  Pac.  Rep.  159,  and  cases  in  note  2. 

585;   State  v.  Fitzgerald,  63  Iowa  268,  4  State  v.  Sharp,  132  Mo.  165,  33  S. 

270,    19    N.    \V.    Rep.    202;    State   v.  W.  Rep.  795 ;  People  v.  Kane,  14  Abb. 

Hemm,   82  Iowa  609,  616,   48  N.   W.  Pr.  15;    Carney  v.  State,  79  Ala.  14; 

Rep.  971;  People  v.  Clark,  33  Mich.  Philips  v.  State,  108  Ind.  406. 

112;    State  v.    Heatherton,   60   Iowa  5  State  v.  Brinkhaus,  34  Minn.  285, 

175;    People  v.  Kane,  14  Abb.  Pr.  15;  286. 

Carney    v.    State,  79   Ala.   14;   Phil-  6  State  v.  Fitzgerald,  63  Iowa  268, 

lips  v.  State,  108  Ind.  406 ;  Bowers  v.  270. 
29— Cr.  Ev. 


450  CRIMINAL  EVIDENCE.  §  389 

relations  towards  one  another,  the  fact  that  the  accused  was 
accustomed  to  visit  the  woman  as  her  lover,  or  to  meet  her 
clandestinely,  and  kept  company  with  her  ;J  that  he  expressed 
a  preference  for  her  society,  and  said  he  intended  to  have  sex- 
ual intercourse  with  her,2  or  hoasted  that  he  had  enjoyed  sex- 
ual favors  at  her  hands,3  or  that  he  intended  to  marry  her,4  are 
always  relevant.5 

So,  to  corroborate  the  woman's  evidence,  it  may  be  shown 
that  the  demeanor  of  the  parties  was  that  of  an  engaged  couple 
and  that  it  was  admitted  by  them,  and  currently  reported 
among  their  friends  and  acquaintances  that  they  were  en- 
gaged. The  fact  that  the  woman  had  made  preparations  for 
the  celebration  of  the  marriage  is  relevant.  On  the  other 
hand  evidence  of  prior  acts  of  intercourse  is  admissible  to 
show  that  the  act  charged  was  not  under  a  promise  of  mar- 
riage.6 

The  conduct  and  relations  of  the  parties  after,  as  well  as  be- 
fore, the  date  of  the  alleged  seduction,  may  be  shown.  Such 
evidence  is  relevant  to  show  that  consent  was  obtained  by 
promises  and  inducements  and  what  they  consisted  of.7 

§  389.  The  examination,  credibility  and  corroboration  of  the 
prosecutrix. — From  the  necessity  of  the  case,  the  making  of  the 
promise,  and  the  sexual  intercourse  are  usually  provable  by  the 
direct  evidence  of  the  female  only-     Her  situation  as  a  witness 

1  State  v.  McClintic,  73  Iowa  663, 665.    546;  State  v.  Brassfield,  81  Mo.  151, 

2  Bailey  v.   State  (Tex.),   30  S.  W.     159. 

Rep.  669.  7  State  v.  Curran,  51  Iowa  112,  49  N. 

3  State  v.  Hill,  91  Mo.  423,  4  S.  W.  W.  Rep.  1006;  People  v.  Gibbs,  70 
Rep.  121.  Mich.  425,  38  N.  W.  Rep.  257,   260; 

*Munkers  v.  State,  87  Ala.  94,  97,  6  People  v.  Clark,   33  Mich.  112,  114; 

So.  Rep.  357.  Bracken  v.  State,  111  Ala.  68,  20  So. 

5The  declarations  of  the  prosecut-  Rep.  636.    The  promise  may  be  very 

ing    witness    are     not   receivable    to  properly  proved  by  the  written  admis- 

incriminate     the     defendant    unless  sion  of  the  defendant  contained  in  a 

they   are   a  part  of  the  res  gestce  or  letter  sent  by  him  to  the  prosecutrix, 

were  made  in  his  presence  and  were  expressly  mentioning  the  engagement 

not    contradicted    by  him.     State  v.  as  existing.     Webb  v.   State  (Miss., 

Sibley,  131  Mo.  519.  1897),  21  So.  Rep.  133. 

6  Bowers  v.  State,  29  Ohio  St.  542, 


§  390  SEXUAL    CRIMES.  45] 

is  peculiar.  The  novelty  and  embarrassment  of  her  position, 
the  presence  around  her  of  a  gaping  and  curious  crowd,  the 
confronting  with  court  and  jury,  the  terror  produced  by  the 
examination  and  cross-examination,  the  memory  of  her  shame 
ever  before  her,  all  combine  to  depress  and  confuse  her.  If 
she  is  a  modest  woman  her  answers  are  likely  to  be  in  mono- 
syllables and  to  present  but  a  feeble  account  of  the  manner  of 
her  seduction.  Much  must  of  necessity  be  left  to  the  jurors  to 
gather  from  her  appearance  and  demeanor  as  well  as  from 
her  language.  In  weighing  her  testimony  the  jurors  must 
consider  her  age  and  situation,  and  what  they  would  expect  of 
their  own  daughters  if  similarly  placed.  How  many  or  what 
kind  of  seductive  arts  are  necessary  to  establish  the  crime  can 
not  be  exactly  denned.  Every  case  must  depend  on  its  own 
circumstances,  considering  the  condition  in  life,  advantages, 
age  and  intelligence  of  the  parties.1 

§  390.    Character    of    corroborative     evidence     required. — 

Where  a  statute  requires  that  the  evidence  of  the  prosecuting 
witness  shall  be  corroborated,  it  has  been  held  sufficient  if  she 
was  corroborated  as  to  some  material  fact  or  part  of  the  case,  so 
that  the  jury  were  satisfied  that  her  whole  evidence  was  credi- 
ble.2    Some  statutes  require  corroboration  only  as  regards  the 

1  State  v.  Higdon,  32  Iowa  262,  264 ;  to  accomplish  this  object.  All  tests 
State  v.  Fitzgerald,  63  Iowa  268.  The  having  any  tendency  to  establish  any 
prosecutrix  may  be  asked  if  she  author-  of  these  should  be  admitted  to  prove 
ized  any  one  to  settle  the  matter  for  the  criminal  conduct.  The  age,  ex- 
her  and  to  take  money  to  dismiss  it.  perience,  artfulness  and  blandish- 
State  v.  Eckler,  106  Mo.  585,  17  S.  W.  ments  of  the  offender,  and  the  youth- 
Rep.  814.  Evidence  to  show  a  con-  fulness,  innocence,  guilelessness  and 
spiracy  between  the  complainant  and  confiding  nature  of  the  injured  party, 
her  father  and  mother  to  inveigle  the  will  be  found  to  enter  largely  into  the 
defendant  into  a  marriage,  and,  fail-  causes  of  the  act.  The  largest  lati- 
ing  this,  to  prosecute  him,  has  been  tude,  consistent  with  safety,  should  be 
received.  People  v.  Clark,  33  Mich,  allowed  in  developing  the  evidence  in 
112,  119.  In  considering  the  means  the  case.  People  v.  Gibbs,  70  Mich, 
used  to   induce   the  woman  to  yield  425,  428,  429. 

and  surrender  her  virtue,  we  must  in-  2  Boyce  v.  People,  55  N.  Y.  644,  647  ; 

elude  all  acts,  artifices,  promises,  en-  People  v.  Orr,  92  Hun  199;  Wilson  v. 

ticements  and  inducements  calculated  State,  73  Ala.  527,  534. 


452 


CRIMINAL    EVIDENCE. 


§391 


promise  of  marriage,1  while  elsewhere  the  corroboration  must 
extend  to  every  material  fact,  including  the  promise  to  marry, 
the  seductive  arts  or  deception  used,  the  chastity  of  the  woman; 
the  intercourse,  and  that  the  last  was  the  result  of  the  promise.2 
It  is  absolutely  essential  that  the  corroborative  evidence  should 
come  from  some  other  witness  than  the  woman.3  But  the  cor- 
roboration need  not  be  direct  or  positive,  or  sufficient  in  itself 
to  convict.4  It  may  consist  of  proof  of  circumstances  which 
customarily  accompany  a  marriage  engagement,  such  as  lover- 
like attentions,  the  receipt  of  love  letters  and  of  visits  from  the 
defendant,  going  with  him  to  church  and  to  places  of  amuse- 
ment, consultations  with  the  woman's  parents  and  preparations 
for  marriage,  together  with  the  fact  that  she  was  at  that  time 
not  receiving  attentions  from  any  other  man.5  Whether  the 
female  can  testify  that  she  did  or  did  not  voluntarily  submit  to 
intercourse  with  the  defendant,  or  state  the  reason  that  she 
yielded,  has  been  differently  decided.  It  has  been  held  that  it 
is  exclusively  for  the  jury  to  determine  whether  the  intercourse 
was  brought  about  by  the  arts  or  promises  of  the  man,  or  by 
the  ungovernable  passions  of  the  woman.6 


§  391.    The  marriage  of  the  accused  to  the  seduced  female. 

-Evidence  is  relevant  to  show  in  defense  that  the  parties  to 


1  State  v.  Hill,  91  Mo.  423,  4  S.  W. 
Rep.  121 ;  State  v.  Reeves,  97  Mo.  668, 
673,  10  S.  W.  Rep.  841. 

2  La  Rosae  v.  State,  132  Ind.  219,  31 
N.  E.  Rep.  798;  State  v.  Bauerkemper 
(Iowa,  1896),  64  N.  W.  Rep.  609 ;  State 
v.  Timrnens,  4  Minn.  325,  332;  Andre 
v.  State,  5  Iowa  389,  398;  State  v. 
Painter,  50  Iowa  317 ;  Zabriskie  v. 
State,  43  N.  J.  L.  640,  647. 

3  State  v.  Hill,  91  Mo.  423,  426,  4  S. 
W.  Rep.  121 ;  McCullar  v.  State  (Tex., 
1896),  36  S.  W.  Rep.  585;  State  v. 
Reeves,  97  Mo.  668,  10  S.  W.  Rep. 
841;  State  v.  McCaskey,  104  Mo.  644, 
16  S.  W.  Rep.  511,  512;  Mills  v.  Com., 
93  Va.  815,  22  S.  E.  Rep.  863;  Cooper 


v.  State,  90  Ala.  641,  642,  8  So.  Rep. 
821;  Munkers  v.  State,  87  Ala.  94,  97. 

4  Wrights.  State,  31  Tex.  Cr.  Rep. 
354,  20  S.  W.  Rep.  756. 

5  State  v.  Hill,  91  Mo.  423,  426 ;  State 
v.  Brassfield,  81  Mo.  151, 156, 160 ;  State 
v.  Timrnens,  4  Minn.  325,  333;  State  v. 
Crawford,  34  Iowa  40;  State  v.  Fitz- 
gerald, 63  Iowa  268,  272;  State  v. 
Lauderbeck  (Iowa,  1896)  65  N.  W.Rep. 
158;  State  v.  Eisenhour,  132  Mo.  140, 
33  S.  W.  Rep.  785;  State  v.  Ayers  (S. 
Dak.,  1896) ,  67  N.  W.  Rep.  611 ;  Bailey 
v.  State  (Tex.,  1897),  38  S.  W.  Rep. 
185. 

6  Wilson  v.  State,  73  Ala.  527,  532. 
Contra,  Ferguson  v.  State,  71  Miss. 
805. 


§  392  SEXUAL    CRIMES.  453 

the  seduction  have  intermarried,  or  that  the  defendant  had,  in 
good  faith,  offered  to  marry  the  woman.1  If  the  accused  maki  a 
such  an  offer  in  open  court  and  the  prosecutrix  declines  to  ac- 
cept it,  the  charge  must  be  dismissed.2  The  state  can  not  be 
permitted  to  introduce  evidence  to  show  the  bad  faith  of  the 
defendant  in  making  the  offer.  It  can  not  be  proved  that  he 
had  previously  declared  that  he  would  never  live  with  her,  or 
that  he  would  leave  her  at  the  first  opportunity.3 

The  state  must  prove  that  the  woman  was  unmarried.4  This 
will  not  be  presumed.  She  may,  and  perhaps  should,  testify 
to  the  facts,  or,  if  she  is  silent,  it  may  be  inferred  from  her 
extreme  youth,  the  fact  that  she  resided  in  her  father's  house, 
and  the  surrounding  circumstances  and  relations  of  the  par- 
ties.5 

§  392.    The  chastity  of  the  female — What  constitutes  chastity 

and  how  it  may  be  proved. — Seduction  is  usually  a  statutory 
crime.  It  is  often  provided  by  statute  that  the  female  must 
have  been  chaste  or  virtuous,  or  of  chaste  character  or  repute 
previous  to  the  intercourse  with  the  accused.  It  is  for  the 
court  to  construe  the  meaning  of  these  words  in  a  statute.6  As 
a  matter  of  law,  every  woman  who  has  never  been  married  and 
who  is  a  virgin  is  chaste.  The  test  is  sexual  intercourse. 
Whether  the  female  is  a  virgin  is  always  a  question  of  fact  for 
the  jury.     The  evidence  upon  this  question  need  not  be  direct. 

1  Wright  v.  State,  31  Tex.  Cr.  App.  S.  W.  Rep.  924,  927;  People  v.  Kru- 

354,  20  S.  W.  Rep.  756.    Contra,  State  sick,   93  Cal.  74,   28  Pac.   Rep.    794; 

v.  Brandenburgh,  118  Mo.  181,  186,  23  (  Mesa  v.  State,  17  Tex.  App.  395;  State 

S.  W.  Rep.  1080;  State  v.  Bauerkem-  v.  Bryan,  34  Kan.  63. 

per  (Iowa,  1896),  64  N.  W.  Rep.  609.  5  Lewis  v.  People,  37  Mich.  518,  520; 

2 Com.   v.  Wright  (Ky.),  27  S.  W.  Bailey  v.  State  (Tex.,  1897),  38  S.  W. 

Rep.  815;  State  v.  Otis,  135  Ind.  267,  Rep.  185. 

270,  34  N.  E.  Rep.  954;  People  v.  6 Where  the  statute  merely  requires 
Gould,  70  Mich.  240,  245,  38  N.  W.  that  the  female  shall  be  of  "  good  re- 
Rep.  232.  pute,"  or  "  of  chaste  character, "some 

3  People  v.  Gould,  70  Mich.  240,  of  the  cases  hold  that  proof  of  actual 
245;  People  v.  Samonset,  97  Cal.  448,  physical  chastity  is  not  necessary. 
32  Pac.  Rep.  520;  Smith  v.  State,  108  State  v.  Sharp,  132  Mo.  165,  33  S.  W. 
Ala.  1,  18  So.  Rep.  306.  Rep.  795.    Contra,  Mills  v.  Com.,  93 

4  State  v.  Wheeler,  108  Mo.  658,   18  Ya.  815,  22  S.  E.  Rep.  863. 


454  CRIMINAL  EVIDENCE.  §  392 

Positive  evidence  of  an  act  of  sexual  intercourse  with  a  man  is 
of  course  conclusive  evidence  of  unchastity.  Physical  un- 
chastity  may  also  be  inferred  from  proof  of  indecent  familiari- 
ties with  men,  or  indecent  language  and  conduct  and,  perhaps, 
from  mere  indiscretion  and  improper  associations.1  All  the 
previous  acts,  conduct  and  conversations  of  the  woman  are  re- 
ceived to  prove  or  disprove  her  chastity,  if  actual  physical 
unchastity  is  not  proved.2  And  where  actual  chastity  of  the 
female  is  admitted,  the  moral  and  mental  chastity  of  the  female 
may  be  relevant  to  enable  the  jury  to  determine  whether  the 
woman,  though  physically  chaste,  was  seduced,  or  whether  the 
intercourse  was  indulged  in  by  her  for  the  purpose  of  gratify- 
ing her  lascivious  desires.3  The  facts  that  the  prosecutrix  lived 
with  her  parents,  relatives  or  guardians,4  moved  in  the  society 
of  respectable  people,  and  was  reputed  to  be  chaste ;  went  to 
church  and  to  social  gatherings,  are  always  relevant  to  prove 
her  actual  chastity.  It  may  always  be  shown  that  a  witness 
had  never  heard  her  reputation  for  chastity  called  in  question.5 
The  woman  may  testify  to  her  own  chastity,6  and  may  be  cross- 
examined  as  to  specific  unchaste  acts  and  conversations  with 
men  other  than  the  defendant,7  whose  names  are  given  or 
whose  names  are  unknown.  She  may  refuse  to  answer  where 
the  answer  would  incriminate  her.  Actual  unchastity,  i.  e., 
criminal  intimacy  with  other  men  existing  after  the  date  of  the 

1  Wood  v.  State,  48  Ga.  192,  289,  299 ;  Rep.  396.  "  There  can  be  no  seduc- 
O'Neill  v.  State,  85  Ga.  383,408;  State  tion,  though  the  woman  be  a  virgin, 
v.  Bell,  49  Iowa  440,  443;  State  v.  unless  she  has  been  actually  seduced; 
Wheeler,  94  Mo.  252,  7  S.  W.  Rep.  on  that  question,  her  moral  qualities, 
103;  Crozier  v.  State.  1  Park.  Cr.  Rep.  as  well  as  her  physical  chastity,  are 
453,  457;  Barnes  v.  State  (Tex.,  1897),  relevant." 

39  S.  W.  Rep.  684;  Kenyon  v.  State,  4  People  v.  Roderigas,  49  Cal.  9. 

26  N.  Y.  203,  207;  People  v.  Brewer,  5Zabriskie  v.  State,43N.J.  L.640.644; 

27  Mich.  134,  135;  Powell  v.  State  State  v.  Bryan,  34  Kan.  63,72,8  Pae. 
(Miss.,  1896),  20  So.  Rep.  4;  People  v.  Rep.  260;  State  v.  Deitrick,  51  Iowa 
Nelson  (N.  Y.,  1897),  46  N.  E.  Rep.  467,  469.  Evidence  of  reputation  for 
1040.  chastity   must  refer  to  a  time  subse- 

2  Andre  v.  State,  5  Iowa  389;  People  quent  to  the  seduction.  People  v. 
v.  McArdle,  5  Park.  Cr.  Rep.  180, 184.  Brewer,  27  Mich.  134, 135. 

"O'Neill  v.  State,  85  Ga.  383,  409;  6  Kenyon  v.  People,  26  N.Y.  203,  209. 
Smith   v.   State,  108  Ala.   1,   18    So.        7  State  v.  Sutherland,  30  Iowa  570. 


§393 


SEXUAL    CRIMKS. 


■1", 


alleged  seduction,   is  excluded  by  the  probability  that  it  re- 
sulted from  it.1 

Where  the  evidence  shows  the  actual  physical  unchastity  of 
the  female  it  may  be  proved  that  she  had  reformed  and  was 
leading  a  chaste  life  at  the  date  of  the  seduction.2  A  presump- 
tion of  reform  may  arise  where  a  reasonable  time  has  elapsed 
since  the  intercourse  ;  but  when  it  was  frequently  repeated  at 
short  intervals  the  burden  of  proving  reformation  is  on  the 
prosecutrix.3 

§  393.  The  presumption  of  chastity. — Two  views  are  held 
upon  the  question  whether  any  presumption  of  law  exists  as  to 
the  chastity  of  the  female  in  a  trial  for  seduction.  Some  of 
the  cases,  basing  their  reasoning  upon  the  presumption  of  the 
prisoner's  innocence,  deny  the  existence  of  any  presumption 
of  chastity  and  require  the  state  to  produce  some  evidence  that 
the  prosecutrix  is  chaste.4 

Other  cases  hold  that  as  chastity  is  the  general  rule  in  mod- 
ern society,  and  a  want  of  it  the  exception,  the  prosecutrix  starts 
with  a  presumption  of  chastity  in  her  favor.5 


1  Bracken  v.  State,  111  Ala.  68,  20 
So.  Rep.  636;  State  v.  Wells,  48  Iowa 
671;  Slocum  v.  People,  90  111.  274, 
Mann  v.  State,  34  Ga.  15;  Boyce  v. 
People,  55  N.  Y.  644,  646. 

2Kenyon  v.  People,  26  N.  Y.  203; 
Wilson  v.  State,  73  Ala.  527;  State  v. 
Timmens,  4  Minn.  325;  Stater.  Dunn, 
53  Iowa  526 ;  People  v.  Clark,  33  Mich. 
112. 

3  People  v.  Clark,  33  Mich.  112,  117  ; 
People  v.  Millspaugh,  11  Mich.  278, 
282. 

4  People  v.  Squires,  49  Mich.  487, 
489;  Zabriskie  v.  State,  43  N.  J.  L. 
640,  644;  Stater.  Wenz/41  Minn.  196, 
197;  People  v.  Wallace,  109  Gal.  611, 
42  Pac.  Rep.  159;  West  v.  State,  1 
Wis.  209,  217,  218;  Com.  v.  Whittaker, 
131  Mass.  224,  225;  Oliver  v.  Com., 
101  Pa.  St.  215,  218;  State  v.  McCas- 


key,  104  Mo.  644,  16  S.  W.  Rep.  511 ; 
Underhill  on  Ev.,  234. 

5  Norton  v.  State,  72  Miss.  128; 
State  v.  Bauerkemper  (Iowa,  1896), 
64  N.  W.  Rep.  609;  Mills  v.  Com., 
93  Va.  815,  22  S.  E.  Rep.  863;  Crozier 
v.  People,  1  Parker  Cr.  Rep.  453,  457 ; 
Slocum  v.  People,  90  111.  274,  281; 
State  v.  Higdon,  32  Iowa  262,  264; 
Wilson  v.  State,  73  Ala.  527,  533,  535 ; 
Ferguson  v.  State,  71  Miss.  805,  808. 
"The question  is  not  '  Are  the  major- 
ity of  women  chaste?'  but  rather  was 
this  woman  chaste  who  admits  she 
consented  to  illicit  intercourse  and 
who  carries  with  her  the  bastard 
which  is  the  result  and  evidence  of 
her  shame?  The  presumption  of  chas- 
tity in  such  a  case  not  only  encount- 
ers the  presumption  of  the  prisoner's 
innocence,  but,  as  it  must  be  univer- 


456 


CRIMINAL    EVIDENCE. 


§394 


§  394.    Defilement   of   female  ward  or  servant. — A   statute 

which  provides  punishment  for  any  guardian  of  a  female 
under  the  age  of  eighteen  years,  or  any  person  to  whose  care  or 
protection  such  female  shall  have  been  confided,  who  shall  de- 
file her  while  in  his  care,  custody  or  employment  is  sustained 
by  proof  that  a  person  in  whose  family  the  female  was  em- 
ployed as  a  servant  had  defiled  her  when  the  evidence  showed 
that  he  had  promised  the  girl's  father  to  watch  over  and  care 
for  her.1  It  is  not  necessary  to  prove  an  express  agreement 
confiding  the  girl  to  the  defendant's  care.2  The  character  of 
the  woman  is  immaterial.  Hence  her  acts  of  illicit  sexual  in- 
tercourse with  others  can  not  be  shown,3  but  the  continuation 
of  the  intercourse  with  the  defendant  after  the  termination  of 
the  employment  is  always  relevant.4 

§395.  Incest  defined. — "Incest,  where  statutes  have  not 
modified  its  meaning,  is  sexual  commerce,  either  habitual  or 
in  a  single  instance,  and  either  under  a  form  of  marriage  or 
without,  between  two  persons  too  nearly  related  in  consanguinity 
or  affinity  to  intermarry."5 

Incest  was  not  indictable  at  the  common  law.     It  is  so  only 


sally  applicable,  raises  the  future  pre- 
sumption that  all  women  who  bear 
illegitimate  children,  and  seek  the 
punishment  of  their  seducers,  were 
absolutely  chaste  and  pure  before  their 
seduction.  This  is  manifestly  untrue 
and  absurd."  Zabriskie  v.  State,  43  N. 
J.  L.  640,  644;  State  v.  McClintic,  73 
Iowa  663,  667,  35  N.  W.  Rep.  696 ;  State 
v.  Hemm,  82  Iowa  609,  612;  People  v. 
Brewer,  27  Mich.  134,  138;  State  v. 
Gates,  27  Minn.  52,  6  N.  W.  Rep.  404; 
Carpenter  v.  People,  8  Barb.  603  ;  State 
v.  Shean,  32  Iowa  88,  90,  91;  State  v. 
Carron,  18  Iowa  372,  375;  Andre 
v.  State,  5  Iowa  389,  398 ;  People  v. 
Clark,  33  Mich.  112;  State  v.  Suther- 
land, 30  Iowa  570. 

1  State   v.  Young,  99  Mo.  284,   288, 
289, 12  S.  W.  Rep.  642;  State  v.  Stratt- 


man,  100  Mo.  540,  550,  13  S.  W.  Rep. 
814;  State  v.  Terry,  106  Mo.  209,  215, 

17  S.  W.  Rep.  288. 

2  State  v.  Sibley,  131  Mo.  519;  State 
v.  Hill,  134  Mo.  663,  36  S.  W.  Rep.  223. 

3  State   w.Rogers,  108  Mo.  202,204, 

18  S.  W.  Rep.  976;  State  v.  Sibley,  131 
Mo.  519. 

4  State  v.  Young,  99  Mo.  284,  290, 12 
S.W.  Rep.  642 ;  State  v.  McClain  (Mo., 
1897),  38  S.  W.  Rep.  906. 

5  Bishop's  St.  Cr.,  §727;  State  v. 
Brown,  47  Ohio  St.  102,  23  N.  E. 
Rep.  747.  For  other  definitions  see 
Daniels  v.  People,  6  Mich.  381;  Com. 
v.  Lane,  113  Mass.  458,  463;  De  Groat 
v.  People,  39  Mich.  124;  Territory  v. 
Corbett,  3  Mont.  50,  55;  Shelly  v. 
State,  95Tenn.  152;  Porath  v.  State, 
90  Wis.  527. 


§  396  SEXUAL   CRIMES.  457 

by  the  various  statutes  which  have  been  enacted  both  in  Eng- 
land and  the  United  States,  and  which  usually  define  the 
crime  in  express  terms  prescribing  what  are  its  essential  in- 
gredients and  particularly  the  prohibited  degrees  of  kinship. 
The  sexual  intercourse,  whether  habitual  or  not,  must  of  neces- 
sity be  a  concurrent  act.  The  evidence  must  show  beyond  a 
reasonable  doubt  that  the  woman  voluntarily  consented  to  it. 
If  it  appears  that  she  was  compelled  either  by  force  or  fraud  to 
submit  without  consent,  the  crime  is  not  incest  but  rape,  though 
the  parties  are  related  within  the  forbidden  degrees.1 

§  39G.  Evidence  to  show  sexual  intercourse. — Proof  of  a 
single  act  of  sexual  intercoure  is  enough.2  Intermarriage, 
though  relevant,  need  not  be  proved.3  Any  evidence  which 
is  relevant  to  prove  adultery  between  a  man  and  woman  is  ad- 
missible.4 The  relation  and  conduct  of  the  parties  toward 
one  another,  their  opportunities  for  meeting,  their  oral  expres- 
sions of  affection  or  liking,  and  their  inclination  to  seek  each 
other's  society  are  always  relevant.  Prior  acts  of  incest  be- 
tween the  same  parties  may  always  be  proved."  So,  too,  it  may 
be  shown  that  they  indulged  in  familiarities  and  caresses 
when  alone  or  in  the  presence  of  others.  But  evidence  of 
demonstrations  of  affection  indulged  in  by  the  parties  should 

1  State  v.  Jarvis,  20  Ore.  437,  26  Pac.  640 ;  De  Groat  v.  People,  39  Mich.  124, 

Rep.  302,  303;  State  v.  Ellis,  74  Mo.  125.    The  acquittal  of  one  is  a  bar  to 

385;  People  v.  Harriden,  1  Park.  Cr.  the  trial   of    the    other.     Baumer  v. 

Rep.  344;  State  r.Hurd  (Iowa,  1897),  State,    49     Ind.    544,    549;     State    v. 

70  N.   W.    Rep.  613.     "This  offense  Thomas,  53  Iowa 214,  217 ;  Yeoman  v. 

can  only  be  committed  by  the  concur-  State,  21    Neb.    171.    Cf.    Mathis    v. 

rent  act  of  two   persons  of  opposite  Com.  (Ky.,  1890),  13  S.  W.  Rep.  360. 

sixes;     and    the    assent  or    concur-  2  State  v.  Brown,  47  Ohio  St.  102,  23 

rence  of  the  one  is  as  essential  to  the  N.  E.  Rep.  747. 

commission  of  the  offense  as  that  of  3 Simon  v.  State,  31  Tex.  Cr.  Rep. 

the  other,  and  as  a  general  rule  both  186,  20  S.  W.  Rep.  399. 

must  be  guilty  or  neither."   People  v.  *See  §§381,  386. 

.Teuness,  5  Mich.  305,321;  Delany  v.  5  People  v.  Cease,  80  Mich.  576,  45 

People,    10   Mich.    241;    Croghan   v.  N.   W.  Rep.  585;   Lefforge  v.   State, 

State,    22    Wis.    444 ;  Schoenfeldt    v.  129  Ind.  551,  29  N.  E.  Rep.  34.      See 

State,  30  Tex.  App.  695,  18  S.  W.  Rep.  ante,  §  390. 


458 


CRIMINAL    EVIDENCE. 


§397 


always  be  considered  by  the  jury  in  the  light  of  the  kinship  of 
the  parties.1 

§  397.  The  kinship  existing  between  the  parties — Evidence 
of  accomplices. — The  kinship  between  the  parties  to  the  incest 
may  be  proved  by  the  evidence  of  relatives  and  friends;  and, 
perhaps,  by  family  reputation.  The  jury  are  to  determine  from 
the  evidence  what  degree  of  consanguinity  or  affinity  has  been 
shown.  But  whether  the  kinship  as  thus  proved  is  or  is  not 
within  the  prohibited  degrees  is  a  question  which  is  for  the 
judge  exclusively.2 

The  law  regards  both  parties  to  the  incestuous  adultery  as 
accomplices.  Hence,  the  rule  requiring  the  testimony  of  an 
accomplice  to  be  corroborated  is  applicable  to  the  testimony  of 
either  testifying  against  the  other.3 

§  398.  Bigamy — The  intent — Invalidity  or  annulment  of  first 
marriage! — Bigamy  may  be  defined  as  the  crime  of  going 
through  the  marriage  ceremony  with  another,  while  a  former 
husband  or  wife  is  living,  and  not  divorced,  knowing  or  hav- 
ing reason  to  believe,  that  the  former  spouse  is  still  alive.  The 
material  facts  are  the  first  and  second  marriages  and  the  fact 
that  the  first  consort  was  alive  and  undivorced  at  the  date  of  the 


1  Evidence  to  show  the  bad  charac- 
ter of  the  woman  previous  to  the  in- 
cest and  that  defendant  lived  upon 
the  wages  of  her  shame  is  irrelevant. 
People  v.  Benoit,  97  Cal.  249,  31  Pac. 
Rep.  1128. 

2  State  v.  Brown,  47  Ohio  St.  102,  23 
N.  E.  Rep.  747,  749.  The  fact  that 
the  daughter  was  illegitmate  is  no 
defense  to  a  charge  of  incest  against 
the  father.  People  v.  Lake,  110  N.  Y. 
61.  It  is  not  necessary  to  prove  that 
the  accused  knew  that  the  other  party 
was  related  within  the  forbidden 
degrees.  State  v.  Bullinger,  54  Mo. 
142;  Simon  v.  State,  31  Tex.  Cr.  Rep. 
186,  20  S.  W.  Rep.  399. 

3  State  v.  Streeter,  20  Nev.  403,  22 


Pac.  Rep.  758,  759;  States.  Dana,  59 
Vt.  614,  10  Atl.  Rep.  727;  State  v. 
Jarvis,  18  Ore.  360,  23  Pac.  Rep.  251, 
253;  Freeman  v.  State,  11  Tex.  App. 
92;  Coburn  v.  State  (Tex.,  1896),  36  S. 
W.  Rep.  442;  State  v.  Jarvis,  20  Ore. 
437,  26  Pac.  Rep.  302,  304;  State  v. 
Miller,  65  Iowa  60,  21  N.  W.  Rep.  181, 
182.  It  seems  that  a  person  may  be 
convicted  of  incest  though  he  gains 
his  ends  by  such  force  as  would  ren- 
der him  guilty  of  rape.  Here,  as  the 
woman  is  not  an  accomplice,  her  evi- 
dence does  not  need  corroboration. 
Smith  v.  State,  108  Ala.  1,  19  So.  Rep. 
306;  Whittakerv.  Com.,  95  Ky.  632,  27 
S.  W.  Rep.  83 ;  State  v.  Hurd  (Iowa, 
1897),  70  N.  W.  Rep.  613. 


§  399  SEXUAL    CRIMES.  459 

void  marriage.  From  such  facts  a  bigamous  intent  may  be 
inferred.  That  the  first  marriage  was  void,1  or  had  been  an- 
nulled or  dissolved  by  a  divorce,  is  always  relevant  as  a  defense.2 

§  399.    Presumptions  and  proof  of   death   of   spouse. — The 

accused  may  prove  he  has  been  credibly  informed  that  his 
wife  had  procured  a  divorce  from  him,  and  may  show  that  he 
had  made  due  inquiry,  and  endeavored  to  ascertain  the  truth. 
If  he  believed,  with  good  reason,  that  such  was  the  case,  he 
should  be  acquitted,  as  the  criminal  intent  is  not  present.3 
The  state  must  prove  affirmatively,  and  beyond  a  reasonable 
doubt,  that  the  first  husband  or  wife  was  alive  at  the  date  of 
the  void  marriage.  This  is  not  presumed,  as  matter  of  law, 
from  proof  that  he  or  she  was  alive  at  a  prior  date,  for  the 
presumption  that  the  accused  is  innocent  will  nullify  the  pre- 
sumption of  the  continuance  of  life.  Hence,  in  the  absence 
of  direct  evidence,  that  the  earlier  spouse  is  alive  when  the 
later  marriage  was  solemnized,  the  jury  must  acquit.4 

§  400.  Competency  of  wife  of  accused. — The  first  and  true 
wife  will  never  be  permitted  to  testify  against  her  husband 
when  he  is  accused  of  bigamy.5     The  second  wife  may  testify 

*3  Greenl.  on  E\\,  203 ;  Halbrook  «.  Squire   v.    State,    46    Ind.    459,   467; 

State,  34   Ark.   511,    517;    People  v.  Cameron  v.  State,  14  Ala.  546;  Reg. 

Chase,  27  Hun  (N.  Y.)  256,  270.  v.    Lumley,    L.    R.    1  C.    C.    R.    196; 

2  Com.  v.  Boyer,  7  Allen  (Mass.)  Some  authorities  hold  that  the  jury 
306;  Tucker  v.  People,  122  111.  583,  13  may  consider  the  fact  that  she  was 
N.  E.  Rep.  809.  The  fact  that  the  alive  at  a  prior  date  and  base  an  in- 
first  marriage  was  voidable  only  is  no  ference  of  fact  upon  it  that  she  was 
defense  and  is  never  relevant.  People  alive  at  the  date  of  the  second  mar- 
v.  Beevers,  99  Cal.  286,  33  Pac  Rep.  riage.  Com.  v.  Caponi,  155  Mass. 
844.  534,  30  N.  E.  Rep.   S2;  Com.   v.  Mc- 

3  Squire  v.  State,  46  Ind.  459,  463.  Grath,  140  Mass.  296,6  N.  E.  Rep. 
Cf.  State  v.  Hughes,  58  Iowa  165,  11  515. 

N.  W.  Rep.  706.  s  See  §  1  Hale  P.  C.  693 ;  1  East.  469  ; 

4  Mitchell  v.  Com.,  78  Ky.  204;  Com.  Miles  v.  United  States,  103  IT.  S.  304, 
v.  Parker,  9  Mete.  (Mass.)  263;  Com.  309,  313-315;  State  v.  Patterson,  2 
v.  Bangs,  9  Mass.  387;  Com.  v.  Hay-  Ired.  L.  (N.  Car.)  346;  Williams  v. 
den,  163  Mass.  453;  State  v.  Howard,  State,  44  Ala.  24;  State  v.  McDavid, 
32  Vt.  380;  Hiler  v.  People,  156  111.  15  La.  An.  403.  Contra,  State  v.  Sloan, 
511 ;  Wilson  v.  State,  2  Ohio  N.  S.  319 ;  55  Iowa  217. 


460  CRIMINAL    EVIDENCE.  §  401 

to  prove  the  second  marriage,  but  only  if  the  first  marriage  is 
already  proved  or  admitted.  As  the  existence  or  validity  of 
the  first  marriage  is  usually  the  sole  issue,  and  is  not  usually 
established  until  a  verdict  is  reached,  this  rule  often  results  in 
excluding  both  women  as  witnesses.  As  the  fact  of  the  first 
marriage  alone  renders  the  second  wife  competent,  it  must  be 
proved  by  independent  witnesses  before  she  testifies.  Even 
then  she  is  competent  only  to  prove  the  second  marriage,  or 
show  facts  rendering  it  void.1  The  unchastity  of  the  second 
wife  is  inadmissible  to  impeach  her  evidence.2 

§  401.  Absence  of  lawful  spouse. — It  is  sometimes  provided 
by  statute  that  the  absence  of  a  husband  or  a  wife  without 
having  been  heard  from  during  a  period  specified,  ranging 
from  two  to  seven  years,  may  be  proved  as  a  defense  by  a 
party  who  marries  again.  It  may  be  shown  that  the  absentee 
was  not  heard  from  as  alive  during  the  statutory  period.  But 
this  presumption  of  death  from  unexplained  silence  and 
absence  may  be  overcome  by  evidence  that  the  absentee  was 
alive  a  short  time  before  the  second  marriage.  As  we  have 
seen,  the  burden  of  proof  is  always  on  the  state  to  show  the 
first  spouse  is  alive,  and  that  the  accused  knows  it.8 

The  absence  of  circumstances  from  which  death  may  be 
presumed  does  not  justify  an  inference  that  the  party  is  alive. 
There  must  be  positive  evidence  that  he  or  she  is  alive,  and 
whether  the  presumption  of  death  from  unexplained  absence 
has  been  rebutted  is  for  the  jury.  Whether  evidence  of  a 
reasonable  belief  on  the  part  of  the  prisoner  that  the  former 
husband  or  wife  is  dead  is  admissible  in  his  defense,  has  been 
differently  decided.  Some  cases  maintain  the  affirmative  of 
this  proposition,4  though  later  cases  support  a  contrary  view.5 

x3  Greenl.  on  Ev.,  §206;    Miles  v.  5Medrano  v.  State,  32  Tex.  C.  Rep. 

United  State,  103  U.  S.  304,  315.  214;   Reg.  v.  Gibbons,  12  Cox.  C.  C. 

2  State  v.  Nadal,  69  Iowa  478,  482,  237,  238;  Reg.  v.  Bennett,  14  Cox.  C. 
29  N.  W.  Rep.  451.  C.  45.     In  Jones  v.  State,  67  Ala.  84, 

3  Gibson  v.  State,  38  Miss.  313,  322.  the  court  said :    "  Every  act  was  done 

4  Reg.  v.  Horton,  11  Cox  C.  C.  670;  *     *     *     which  is  declared  criminal, 
Reg.  v.  Turner,  9  Cox  C.  C.  145.  and  from  the  act,  and  the  circum- 


§  402  SEXUAL    CRIMES.  461 

§  402.    Proof  of  marriage  by  eye  witness  or  certificate. — A 

higher  degree  of  proof  of  a  marriage  is  required  in  criminal 
trials  than  is  necessary  in  civil  actions,1  in  which  marriage 
may  be  inferred  to  exist  from  evidence  of  reputation  coupled 
with  cohabitation.  A  marriage  in  fact  must  be  proved.  This 
may  be  done  by  the  testimony  of  an  eye  witness  to  the  cere- 
mony,2 by  that  of  the  person  who  performed  it,  or  by  a  mar- 
riage certificate.3 

§  403.  Proof  of  marriage  by  reputation,  cohabitation  and 
conduct. — Though  mere  cohabitation  and  holding  out  do  not 
constitute  marriage,  in  civil  cases  the  existence  of  the  marital 
relation  may  be  inferred  from  evidence  that  the  parties  cohab- 
ited as  man  and  wife,  and  were  reputed  to  be  such  among  their 
friends  and  acquaintances.  In  a  prosecution  for  bigamy  such 
evidence  alone  is  not  sufficient  to  prove  the  first  marriage. 
Some  of  the  cases  admit  evidence  of  cohabitation,  conduct  and 
reputation  to  corroborate  direct  evidence  and  to  prove  the  con- 
stances,  the  criminal  intent  must  be  Proof  that  the  ceremony  was  per- 
inferred.  There  was  the  intent  to  formed  by  a  justice  or  other  official 
marry  a  second  time,  not  knowing  will  suffice  without  proving  his  ap- 
the  husband  to  be  dead,  who  had  pointment.  This  will  be  presumed.  1 
been  absent  for  one  year  only,  and  Greenl.  on  Ev.,  §92;  State  v.  Abbey, 
this  is  the  criminal  intent,  and  the  29  Vt.  60,  65.  A  constitutional  provis- 
only  intent  which  is  of  the  essence  of  ion  that  the  accused  shall  be  con- 
the  crime,"  and  see  State  v.  Zichfield  fronted  with  the  witnesses  against  him 
(Nev.,  1897),  46Pac.  Rep.  802.  does  not  exclude  certified  copies  of 

1  Halbrook  v.  State,  34  Ark.  511,  517.     marriage  records  which  are  made  re- 

2  Crane  v.  State,  94  Tenn.  86,  28  S.  ceivable  by  a  statute.  State  v.  Mat- 
W.  Rep.  317 ;  People  v.  Perriman,  72  lock,  70  Iowa  229,  30  N.  W.  Rep.  495. 
Mich.  184.  A  marriage  certificate,  though  inad- 

3  2  Greenl.  on  Ev.,  §  461 ;  2  Stark,  on  missible  as  such  because  not  properly 
Ev.,  698;  Faustre  v.  Com.,  92  Ky.  34,  authenticated  and  certified  according 
17  S.  W.  Rep.  189;  State  ?>.  Johnson,  to  statute,  may,  perhaps,  be  received 
12  Minn.  476,  481 ;  State  v.  Armstrong,  as  a  part  of  the  res  gestae  of  the  mar- 
4  Minn.  335,  344;  State  v.  Hodgskins,  riage  if  it  is  shown  to  have  been  made 
19  Me.  155,  158;  State  v.  Clark,  54  and  delivered  at  the  time.  People  v. 
N.  H.  456,  459 ;  State  v.  Williams,  20  Crawford,  133  N.  Y.  535,  30  N.  E.  Rep. 
Iowa  98 ;  Arnold  v.  State,  53  Ga.  574,  1148.  See,  also,  ante,  §  383,  as  to  proof 
575;   Johnson  v.  State,  60  Ark.  308;     of  marriage. 

Swartz    v.    State,    7    Ohio    Dec.    43. 


462 


CRIMINAL    EVIDENCE. 


§  404 


tinuance  of  the  marriage.1     Other  authorities  reject  it  alto- 
gether.2 

§  404.  The  admissions  of  the  accused  as  evidence  to  prove 
the  marriage — Primary  evidence  of  the  ceremony — When  re- 
quired.— The  cases  are  not  harmonious  on  the  question  whether 
the  declarations  of  the  accused  are  receivable  to  prove  the  cere- 
mony of  marriage,  the  names  of  the  parties,  or  the  time  and 
place,  when  these  facts  are  material.  The  admissions  of  the 
accused,  deliberately  made,  that  the  marriage  relation  existed 
have  been  repeatedly  received.3 

On  the  other  hand,  it  has  been  repeatedly  decided  that  the 
defendant's  admissions  would  not  dispense  with  primary,  i.  e., 
written  evidence,  of  the  specific  facts  regarding  the  ceremony, 
etc.,  at  least  where  such  evidence  was  in  existence  and  could 
be  procured.4  Such  evidence  is  not  conclusive  and  creates  no 
presumption  of  law  that  a  valid  marriage  existed  at  the  time 
of  the  bigamous  union.     It  should  go  to  the  jury  for  what  it 


1  Gahagan v.  People,  1  Park.  Cr.  Rep. 
378,  383 ;  People  v.  McQuaid,  85  Mich. 
123 ;  Hayes  v.  People,  25  N.  Y.  390, 
393,  396 ;  State  v.  Nadal,  69  Iowa  478 ; 
United  States  v.  Tenney  (Ariz.),  11 
Pac.  Rep.  472. 

2  State  v.  Roswell,  6  Conn.  446 ;  State 
v.  Johnson,  12  Minn.  476,  482;  Adkis- 
son  v.  State,  34  Tex.  Cr.  App.  296,  30 
S.  W.  Rep.  357;  State  v.  Cooper,  103 
Mo.  266,  15  S.  W.  Rep.  327. 

3 Tucker  v.  People,  117  111.  88,  90; 
State  v.  Melton  (N.  Car.,  1897),  26  S. 
E.  Rep.  933;  State  v.  Abhey,  29  Vt. 
60,  64;  Com.  v.  Jackson,  11  Bush 
(Ky.),  679;  Halbrook  v.  State,  34 
Ark.  511,  517;  Oneale  v.  Com.,  17 
Gratt.  (Va.)  582;  State  v.  Nadal,  69 
Iowa  478,  482 ;  Miles  v.  United  States, 
103  U.  S.  304,  311 ;  Stanglein  v.  State, 
17  Ohio  St.  453,  561 ;  United  States  v. 
Tenney  (Ariz.,  1888),  8  Pac.  Rep.  295; 
State  v.  Hodgskins,  19  Me.  155,  158 ; 
Murtagh's  Case,   1    Ashm.  272,   275; 


Warner  v.  Com.,  2  Va.  Cas.  95;  State 
v.  Hilton,  3  Rich.  (S.  Car.)  434,  485; 
Wolverton  v.  State,  16  Ohio  173,  178; 
Crane  v.  State,  94  Tenn.  86,  28  S.  W. 
Rep.  317;  State  v.  Ulrich,  110  Mo. 
350, 19  S.W.Rep.  656 ;  State  v.  Hughes, 
35  Kan.  626, 12  Pac.  Rep.  28.  State  v. 
Jenkins  (Mo.,  1897),  41  S.W.  Rep.  220. 
Letters  written  by  the  accused  to  his 
first  wife  were  received  against  him  in 
Tucker  v.  People,  122  111.583, 13  N.  E. 
Rep.  809.  The  silence  of  the  accused 
under  circumstances  where  it  is  his 
duty  to  speak  may  doubtless  be  proved 
against  him  as  an  admission  of  his 
marriage. 

4  People  v.  Humphrey,  7  John.  (N. 
Y.)  314;  State  v.  Roswell,  6  Conn. 
446,  449;  Com.  v.  Norcross,  9  Mass. 
492;  Com.  v.  Littlejohn,  15  Mass.  163; 
Miner  v.  People,  58  111.  59,  60;  Sher- 
man v.  People,  13  Hun  (N.  Y.)  576; 
South  v.  People,  98  111.  261,  265;  State 
v.  Armstrong,  4  Minn.  335,  344. 


§  405  SEXUAL    CRIMES.  463 

is  worth.     Coupled  with  evidence  of  reputation  and  cohabita- 
tion, it  is  very  strong  proof  of  a  valid  marriage.1 

§  405.  Marriage  certificates  and  transcripts  of  records  as  evi- 
dence— Presumption  of  validity — Venue. — A  marriage,  cele- 
brated in  a  foreign  country,  may  be  proved  by  a  transcript  of 
the  foreign  record2  if  it  is  also  shown  that  the  law  of  the 
place  of  the  marriage  required  that  a  record  should  be  made 
and  kept,  and  that  the  record  was  made  and  kept  under  and 
in  conformity  with  that  law.3  A  marriage  certificate  or  a 
license  is  competent  evidence  under  the  rule  admitting  the  en- 
tries of  third  persons  made  in  the  course  of  their  professional 
employment.  A  marriage  shown  to  have  been  solemnized 
will  be  presumed  to  be  valid  until  its  invalidity  is  shown. 
The  burden  of  proof,  where  the  validity  of  a  marriage  is  dis- 
puted, is  upon  the  prosecution,4  and  direct  evidence  of  non- 
assent  by  either  party  to  the  marriage  is  relevant  to  rebut  the 
presumption  of  validity.5  The  venue  of  the  bigamous  mar- 
riage, unless  essential  to  confer  jurisdiction,6  or  to  establish  the 
specific  character  of  the  offense,  need  not  be  proved  precisely 
as  laid.7 

§  40G.  Bigamous  cohabitation. — The  corpus  delicti  of  bigamy 
is  the  unlawful  marriage  contract.    Cohabitation  in  a  bigamous 

1  State  v.  Sanders,  30  Iowa  582,  584 ;  marriage  is  proved  or  admitted.  Hal- 
State  v.  Cooper,  103  Mo.  266,  15  S.  W.  brook  v.  State,  34  Ark.  511,  519.  So 
Rep.  327 ;  People  v.  Crawford,  133  of  a  petition  for  a  divorce.  Adkisson 
N.  Y.  535.  Evidence  that  the  de-  v.  State,  34  Tex.  Cr.  Rep.  296,  30  S.  W. 
fendant  cohabited  with  a  woman  and  Rep.  357. 

had  children  by  her  who  lived  with  z  State    v.    Dooris,    40  Conn.    145 

him,  that  the  woman  signed  and  ac-  Stanglein  v.  State,  17   Ohio   St.   453 

knowledged  deeds  as  his   wife,  sued  State  v.  Melton    (N.  Car.,   1897),   2t5 

for  and  was  granted  a  divorce,  the  de-  S.  E.  Rep.  933. 

fendant  answering  in  the  suit,  is  com-  3  Tucker  v.  People,  117  111.  88,  7  N. 

petent,  and  has  been  held  sufficient  E.  Rep.  51. 

proof  of  a  marriage.     State  v.  Gonce,  4  People  v.  Chase,  27  Hun  256,  260; 

7'.i  Mo.  600.  Proof  that  A  was  granted  Weinberg  v.  State,  25  Wis.  370;  Bird 

a  divorce  from  B   on  a  given  date  is  v.  Com.,  21  Gratt.  (Va.)  800. 

strong  evidence  that  a  marriage  had  5  Kopke  v.  People,  43  Mich.  41. 

existed  between  A  and  B  at  that  date,  G  Tucker  v.  State,  117  111.  88,  92. 

as  a  divorce  is  never  granted  unless  a  7  State  v.  Nadal,  69  Iowa  478,  483. 


464  CRIMINAL  EVIDENCE.  §  406 

union  is  not  material,  and  need  not  be  proved  unless  its  proof 
is  required  by  statute.1  But  proof  of  unlawful  cohabitation  is 
always  admissible  as  tending  to  show  the  relations  of  the 
parties  and  to  corroborate  the  evidence  of  a  marriage.2  The 
first  wife  will  not  be  permitted  to  testify  against  the  defendant.3 

1  State  v.  Sloan,  55  Iowa  217,  7  N.        2  United  States  v.  Tenney   (Ariz.), 
W.  Eep.  516;  Nelms  v.  State,  84  Ga.     11  Pac.  Rep.  472. 
466;  Gise  v.   Com.,   81   Pa.   St.   428;        3 Underbill  on  Ev.  *  *  State  v.  Pat- 
State  v.  Patterson,  2  Ired.  (N.  Car.)     terson,  2  Ired.  L.  (N.  Car.)  346;  Wil- 
346.  liams  v.  State,  44  Ala.  24 ;  State  v.  Mc- 

David,  15  La.  An.  403. 


CHAPTER   XXVIII. 


RAPE. 


§  407.   Rape   defined  —The  non-con-     §  414. 
sent  of  the  prosecutrix — Pre- 
sumption   of   incapacity    to 
consent. 

408.  Rape  by  infants. 

409.  Relevancy  of  the  victim's  com-        415. 

plaints — Proving  the  details 

of  what  she  said.  416. 

410.  Proving  the  details  to  impeach 

or  corroborate.  417. 

411.  Delay  in  making  complaint — 

Reasons  for  delay. 

412.  Medical  testimony.  418. 

413.  Relevancy     of     the    physical 

condition    of     the    prosecu- 
trix. 


The  prosecutrix  as  a  witness 
— Her  competency  and  credi- 
bility— Infancy  of  the  prose- 
cutrix when  rendering  her 
incompetent  as  a  witness. 

The  prior  relations  of  the 
parties. 

Proof  of  carnal  knowledge 
requisite. 

The  force  or  fraud  employed — 
Threats  and  mortal  fear — 
Failure  to  make  outcry. 

Reputation  of  the  prosecutrix 
for  chastity — Proof  of  specif- 
ic unchaste  acts. 


§  407.  Rape  defined — The  non-consent  of  the  prosecutrix — 
Presumption  of  incapacity  to  consent. — Rape  is  the  crime  of 
obtaining  carnal  knowledge  of  a  female  forcibly  and  without 
her  consent,1  or  "against  her  will,"  the  latter  word  as  thus 
used  being  synonymous  with  desire  or  inclination.2 

The  absence  of  consent,  where  it  is  not  presumed  from  the 
immaturity  of  the  female,  must  always  be  proved  beyond  a  rea- 
sonable doubt.  The  absence  of  consent  need  not  be  the  result 
of  a  conscious   exercise   of   volition  withholding  it.     It  is  not 


1  4  Bl.  Com.  210.  In  Hale's  Pleas 
of  the  Crown  this  crime  is  defined  as 
"the  carnal  knowledge  of  any  woman 
above  the  age  of  ten  years  against  her 
will,  and  of  a  woman  child  under  the 
age  of  ten  years  with  or  against  her 
will."   It  is  not  easy  to  express  in  one 


definition  all  the  refinements  of  the 
cases.  Statutory  definitions  differ,  and 
cases  may  be  stated  which  are  pun- 
ishable as  rape  in  some  jurisdictions, 
while  not  in  others. 

2  People  v.  Crosswell,  13  Mich.  427, 
432.   See  State  v.  Pickett,  11  Nev.  255. 


30— Cr.  Ev. 


(465) 


466  CRIMINAL  EVIDENCE.  §  407 

always  necessary  to  prove  active  resistance  on  the  part  of  the 
female.  Absence  of  consent  will  be  presumed  whenever  sex- 
ual intercourse  is  procured  by  fraud,  or  the  woman  is  phys- 
ically or  mentally  incapable  of  consenting,  because  she  has 
been  drugged,  is  non  compos  mentis,  or  is  under  the  statutory 
age  of  consent.1  If  the  woman  having  legal  capacity  to  consent, 
shall  consent  to  the  consummation  of  the  intercourse,  a  verdict 
of  guilty  can  not  be  sustained,  no  matter  how  reluctant  or  tardy 
her  consent  may  have  been,  or  how  much  force  had  been  used.2 
The  question  whether  she  consented  is  for  the  jury.  As  con- 
sent, that  is  the  concurrence  of  her  will  with  the  will  of  the 
accused,  is  purely  a  mental  condition,  its  existence,  when  put 
in  issue,  must  be  inferred  from  the  facts  in  the  case.  From  the 
secret  nature  of  the  crime,  evidence  of  circumstances  from  which 
intent  must  be  inferred  should  be  carefully  scrutinized.3  Among 
the  facts  which  are  relevant  to  show  the  absence  or  presence 
of  consent  are  the  resistance  which  was  offered  by  the  woman, 
her  physical  condition  and  strength,  and  that  of  the  accused,4 
and  the  means  employed  by  the  latter  to  inspire  her  with  fear. 
A  child  under  the  age  of  ten  years  was,  at  common  law,  conclu- 
sively presumed  incapable  of  consenting  to  sexual  intercourse,5 
though,  if  she  were  so  developed  mentally  and  physically  as  to 
understand  the  nature  and  consequences  of  the  act,  the  presump- 
tion was  sometimes  regarded  as  rebuttable.  The  statutory  age  of 

l2  Bish.  Crim.  Law  1115;  1  Hale  4  Brown  v.  Com.,  82  Va.  653,  656; 
P.  C.  629.  State  v.   Cunningham,  100  Mo.  382, 

2  Mills  v. United  States,  164  U.  S.  644,    391,  12  S.  W.  Rep.  376. 

17  S.  Ct.  Rep.  210 ;    Conners  v.  State,  5  Com.  v.  Sugland,  4  Gray  (Mass.)  7 ; 

47  Wis.  523 :  Pollard  v.  State,  2  Iowa  Com.  v.  Roosnell,  143  Mass.  32,  37,  39 ; 

567;  Whittaker  v.  State,  50  Wis.  518;  State  v.  Sullivan,  68  Vt.  540,  35  Atl. 

Reynolds  v.  State,  27  Neb.  90,92,  42  Rep.   479;  Proper  v.   State,   85  Wis. 

N.  W.    Rep.  903;  Hollis  v.  State,  27  615,  631,  632;  Farrell  v.  State,  54  N.J. 

Fla.  387,  391-394,  9  So.  Rep.  67.  L.  416,  419 ;  State  v.  Miller,  42  La.  An. 

3  Anderson  v.  State,  41  Wis.  430;  1186;  People  v.  Crosswell,  13  Mich. 
Brown  v.  State,  76  Ga.  623,  626.  "The  427;  People  v.  McDonald,  9  Mich, 
importance  of  resistance  is  simply  to  150;  Moore  v.  State,  17  Ohio  St.  521, 
show  two  elements  in  the  crime;  car-  525;  Coates  v.  State,  50  Ark.  330,  335, 
nal  knowledge  by  force  by  one  of  the  356.  The  mother  of  the  child  may 
parties  and  non-consent  by  the  oth-  testify  to  her  age.  McMath  v.  State, 
er."     State  v.  Shields,  45  Conn.  256.  55  Ga.  303,  307. 


§  408 


RAPE. 


467 


consent  now  varies  in  the  several  states.*  If  the  female  is  under 
the  statutory  age,  the  presumption  of  non-consent  is  conclu- 
sive, and  evidence  to  show  that  force  was  or  was  not  used,  or 
generally  that  she  did  or  did  not  consent,  is  alike  inadmissi- 
ble.2 If  the  female  is  over  the  age  of  consent,  proof  of  mere 
absence  of  consent  is  enough,  and  evidence  of  facts  constitut- 
ing an  active  and  positive  dissent  is  not  required.  The  non- 
consent  may  be  inferred  by  the  jury  from  proof  that  the  female 
was  mentally  weak,  at  least  where  such  a  degree  of  imbecility 
is  shown  that  it  is  evident  that  she  did  not  realize  the  mean- 
ing, or  the  nature  and  consequences  of  the  sexual  act.3 

§  408.  Kape  by  infants. — In  England  at  common  law  a  boy, 
under  the  age  of  fourteen,  was  conclusively  presumed  unable 
to  commit  rape.4  Most,  if  not  all  the  American  authorities, 
reasoning  from  the  difference  in  climate  between  England  and 
America,  the  diversity  of  habits  of  living  and  the  peculiar  in- 


^Crim.  L.  Mag.  347. 

2  People  v.  Miller,  96  Mich.  119,  55 
N.  W.  Rep.  675;  State  v.  Wray,  109 
Mo.  594,  599,  19  S.  W.  Rep.  86;  Reg. 
v.  Beale,  10  Cox  C.  C.  157 ;  White  v. 
Com.,  96  Ky.  180,  28  S.  W.  Rep.  340; 
State  v.  Eberline,  47  Kan.  155,  157; 
State  v.  Storkey,  63  N.  Car.  7;  Mur- 
phy v.  State,  120  Ind.  115,  116;  State 
v.  Dancy,  83  N.  Car.  608,  609;  Will- 
iams r.  State,  47  Miss.  609,  613;  State 
7'.  Wright,  25  Neb.  38,  41;  Wood  v. 
State,  46  Neb.  58,  64  N.  W.  Rep.  355; 
State  v.  McMath,  55  Ga.  303;  Farrell 
v.  State,  54  N.  J.  L.  416,  419;  Comer 
r.  State,  20  S.  W.  Rep.  547;  State  v. 
Laeey,  111  Mo.  513,  516;  Givens  v. 
Com",  29  Gratt.  (Va.)  830,  832;  Davis 
r.  State,  31  Neb.  247,  47  N,  W.  Rep. 
854;  Mayo  v.  State,  7  Tex.  App.  342; 
Fizell  v.  State,  25  Wis.  364;  People  v. 
Goulette,  82  Mich.  36,  45  N.  W.  Rep. 
1124;  State  v.  Tillman,  30  La.  An. 
1249;  State  v.  Grossheim,  79  Iowa  75, 


44  N.  W.  Rep.  541  ;  Proper  v.  State, 
85  Wis.  615;  Com.  v.  Murphy,  165 
Mass.  66,  42  N.  E.  Rep.  504;  State  v. 
Forsythe  (Iowa,  1897),  68  N.  W.  Rep. 
446. 

3  State  v.  Enright,  90  Iowa  520,  58 
N.  W.  Rep.  901 ;  Rodriguiz  v.  State, 
20  Tex.  App.  542;  Reg.  v.  Barratt,  12 
Cox.  C.  C.  498;  People  v.  Crosswell, 
13  Mich.  427,  432;  State  v.  Cunning- 
ham, 100  Mo.  382,  392,  12  S.  W.  Rep. 
376.  If  the  female  is  actually  under 
the  statutory  age  of  consent,  evidence 
to  show  facts  from  which  the  accused 
might  have  inferred  that  she  was  of 
age  to  consent  is  inadmissible.  Peo- 
ple v.  Ratz,  115  Cal.  132,  46  Pac.  Rep. 
915. 

4  Reg.  v.  Philips,  8C.&P.  736;  Reg. 
>\  Jordan,  9  C.  &  P.  118;  Rex  r. 
Groombridge,  7  C.  &  P.  582;  State  v. 
Handy,  4  Harr.  (Del.)  566,  567;  Mc- 
Kinny  v.  State,  29  Fla.  565,  10  So.  Rep. 
732. 


168 


CRIMINAL    EVIDENCE. 


$  409 


termingling  of  races  in  America,  have  regarded  this  presump- 
tion as  rebuttable.1 

But  the  evidence  of  physical  capacity  or  of  the  actual  matur- 
ity of  the  infant  must  be  clear  and  cogent.  Slight  or  uncon- 
vincing evidence  of  actual  capacity  will  not  be  enough  to 
justify  submitting  the  case  to  the  jury.2 

§  409 .  Relevancy  of  the  victim's  complaint — Proving  the 
details  of  what  she  said. — The  fact  that  the  victim  of  a  rape 
was  weeping,3  or  that  she  made  immediate  complaint,  as  well 
as  when  she  made  it  and  to  whom,  being  material  and  relevant 
to  show  the  commission  of  the  crime,  may  be  proved  as  origi- 
nal evidence  on  the  direct  examination  of  the  prosecutrix,4  or 
of  any  other  witness.  It  may  be  shown  that  the  complaint 
was  made,  where  and  to  whom  it  was  made,  and  that  some 
person  was  accused  who  must  not  be  named.  But  the  details 
of  what  the  prosecutrix  said  can  not  be  proved  on  the  direct 
examination,5  unless  the  complaint  is  so  closely. connected  with 


1  Williams  v.  State,  14  Ohio  222; 
People  v.  Randolph,  2  Park.  Cr.  Rep. 
174,  177;  Heilman  v.  Com.,  84  Ky. 
457,  461 ;  State  v.  Jones,  39  La.  An. 
935,  936. 

K  Godfrey  v.  State,  31  Ala.  323,  328; 
State  v.  Goin,  9  Humph.  (Tenn.)  175, 
177.  A  boy  over  fourteen  is  presumed 
capable.  State  v.  Handy,  4  Harr. 
(Del.)  566,  567;  State  v.  Goin,  supra. 
If  a  crime  be  not  merely  the  result  of 
boyish  pugnacity,  but  of  some  passion 
such  as  lust  in  the  case  of  rape,  the 
law  will  interpose  and  the  infant, 
though  under  fourteen,  will  be  pun- 
ished. Malice  and  wickedness  will 
supply  the  want  of  age.  State  v.  Pugh, 
7  Jones  (N.  Car.)  Law  61,  63.  Of. 
Heilman  v.  Com.,  84  Ky.  457. 

8  State  v.  Bedard,  65  Vt.  278,  26  Atl. 
Rep.  719. 

4  State  v.  Patrick,  107  Mo.  147,  163; 
Poison  v.  State,  137  Ind.  519,  35  N.  E. 
Rep.  907;  Griffin  v.  State,  76  Ala.  29, 


32;  Territory  v.  Godfrey,  6  Dak.  46; 
People  v.  Barney,  114  Cal.  554,  47Pac. 
Rep.  41;  Oleson  v.  State,  11  Neb.  276, 
279. 

5  Hannon  v.  State,  70  Wis.  448,  451  ; 
Lee  v.  State,  74  Wis.  45;  State  v. 
Langford,  45  La.  An. 1177, 1179;  Lowe  v. 
State,  97  Ga.  792,  25  S.  E.  Rep.  676; 
Baccio  v.  People,  41  N.  Y.  265,  272; 
Thompson  v.  State,  38  Ind.  39;  Ellis 
v.  State,  25  Fla.  702,  708,  6  So.  Rep. 
768;  State  v.  Shettleworth,  18  Minn. 
208,  212;  People  v.  Stewart,  97  Cal. 
238,  32  Pac.  Rep.  8;  Stephen  v.  State, 
11  Ga.  225;  State  v.  Campbell,  20Nev. 
1 22, 1 7  Pac.  Rep.  620 ;  State  v.  Mitchell , 
68  Iowa  116,  119;  State  v.  Richards, 
33  Iowa  420 ;  State  v.  Clark,  69  Iowa 
294;  Parker  v.  State,  67  Md.  329; 
Stevens  v.  People,  158  111.  Ill,  41  N. 
E.  Rep.  856;  Pefferling  v.  State,  40 
Tex.  486;  People  v.  Tierney,  67  Cal. 
54;  People  v.  Mayes,  66  Cal.  597; 
Hornbeck  v.  State,  35  Ohio  St.  277; 


§410 


RAPE. 


169 


the  time  or  place  of  the  crime   as   to   form   a  part  of   the  res 
gestx.1 

§  410.  Proving  details  to  impeach  or  corroborate. — Though 
the  particulars  of  the  complaint  are  not  generally  receivable 
from  the  witness  who  testifies  to  the  fact  that  it  was  made, 
counsel  for  the  accused  may,  with  propriety,  bring  out  the  de- 
tails upon  cross-examination  to  contradict  or  to  impeach  the 
witness,  or  the  prosecutrix  if  she  testifies.2 

As  an  exception  to  the  general  rule  the  details  of  the  com- 
plaint are  sometimes  allowed  to  be  shown  upon  the  direct  ex- 
amination solely  to  corroborate  the  prosecutrix  (and  then  only 
after  she  has  been  impeached),  by  showing  that  she  told  the 
same  story  to  several  persons  in  or  out  of  court.3 

But  the  details  of  the  complaint  can  not  be  introduced  if  the 
prosecutrix  refuses  to  testify,  or  if  she  can  not  testify  because 
she  has  died  before  the  trial,4  or  because  she  is  an  imbecile.5 


Oleson  v.  State,  11  Neb.  276,  279; 
Hoist  v.  State,  23  Tex.  App.  1,  3  S. 
W.  Rep.  757.  Cf.  Reg.  v.  Walker,  2 
Moo.  &  R.  212. 

1  State  v.  Fitzsimons,  18  R.  1.236, 
27  Atl.  Rep.  446;  People  v.  Glover,  71 
Mich.  303;  People  v.  Gage,  62  Mich. 
271.  274;  Castillo  v.  State,  31  Tex.  Cr. 
Rep.  145,  150;  Barnett  v.  State,  83  Ala. 
40;  Barnes  v.  State,  88  Ala.  204,  208; 
State  r.  Byrne,  47  Conn.  465,  467; 
State  v.  Kinney,  44  Conn.  153;  State 
v.  Patrick,  107  Mo.  147,  163-168 ;  State 
v.  Jerome,  82  Iowa 749,  48  N.  W.  Rep. 
722;  Laughlin  v.  State,  18  Ohio  99; 
State  v.  McMath,  55  Ga.  303,  307; 
Baccio  v.  People,  41  N.  Y.  265 ;  Stephen 
v.  State,  11  Ga.  225;  Reg.  v.  Eyre, 
2  F.  &  F.  579. 

2  State  v.  Freeman,  100  N.  Car.  429, 
433;  Wood  v.  State,  46  Neb'.  58;  State 
v.  Clark,  69  Iowa  294,  296;  Barnett  r. 
State,  83  Ala.  40,  44;  GriflBn  v.  State, 
76  Ala.  29,  32;  Pleasant  v.  State,  15 
Ark.  624;  Thompson  r.  State,  38  Ind. 
39,  3  Greenl.   on  Ev.  213;  Parker  v. 


State,  67  Md.  329,  331,  10  Atl.  Rep.  219. 
"If  these  declarations  are  in  accord 
with  the  testimony  of  the  prosecutrix 
given  in  court  they  tend  to  strengthen 
and  give  effect  to  it ;  if  against  it  her 
testimony  is  destroyed."  Johnson  v. 
State,  17  Ohio  593 ;  approved  in  State 
r.  Patrick,  107  Mo.  147,  163. 

3 Castillo  v.  State,  31  Tex.  Cr.  Rep 
145,  151 ;  State  v.  Byrne,  47  Conn 
465,  467;  State  v.  Kinney,  44  Conn 
153;  Barnett  v.  State,  83  Ala.  40,  44 
Oleson  v.  State,  11  Neb.  276,  281 : 
Proper  v.  State,  85  Wis.  615;  State 
v.  Langford,  45  La.  An.  1177,  1180; 
State  v.  Hutchison  (Iowa,  1896),  64 
N.  W.  Rep.  610,  and  see  cases  in  last 
note. 

4  Reg.  v.  Megson,  9  C.  &  P.  420. 

5  State  v.  Meyers,  46  Neb.  152.  Such 
evidence,  though  in  corroboration, 
may  be  received  before  she  testifies. 
Proctor  v.  Com.  (Ky.,  1893),  20  S.  W. 
Rep.  213;  State  v.  Mitchell,  68  Iowa 
116,  119.  Contra,  Johnson  v.  State, 
17  Ohio  St.  593. 


470  CRIMINAL  EVIDENCE.  §  411 

§  411.    Delay  in  making  complaint — Reasons   for   delay. — 

Undue  delay  and  even  delay  for  a  few  days,  unless  reasonably 
explained,  may,  it  seems,  result  in  the  rejection  of  evidence  of 
the  fact  that  a  complaint  was  made.1 

No  invariable  rule  can  be  laid  down  defining  what  weight 
delay  will  have.  It  is  so  natural  that  a  virtuous  female  should 
immediately  complain  of  such  an  outrage  to  those  connected 
with  her  by  ties  of  blood  or  friendship,  that  her  neglect  to  do 
so  is  a  circumstance  which  may  discredit  her.  Silence  and  de- 
lay in  making  complaint  would  be  likely  to  awaken  suspicion 
and  doubt  as  to  the  truth  of  the  complaint.  How  much  they 
ought  to  discredit  her  depends  wholly  upon  the  circumstances 
and  upon  the  nature  and  validity  of  the  reasons  for  her  si- 
lence.2 

If  the  silence  or  the  delay  of  the  prosecutrix  in  complaining 
is  urged  to  lessen  the  force  or  credibility  of  her  evidence,  she 
should  always  be  permitted  to  explain  why  she  was  silent. 
Her  delay  may  be  explained  and  excused  by  proof  of  sufficient 
cause  therefor,  as,  for  example,  by  want  of  opportunity,  or  by 
duress  or  threats  by  the  perpetrator  of  the  wrong.  Thus,  if  she 
is  a  child  she  may  show  she  did  not  complain  immediately  to 
her  mother  because  she  was  afraid  of  a  whipping,3  or  because 
the  latter  was  away  from  home  when  the  crime  was  commit- 

1  Hornbeck  v.  State,  35  Ohio  St.  277 ;  tween  the  perpetration  of  the  act  and 
Bueno  v.  People  (Colo.),  28  Pac.  the  complaint  is  not  the  test  of  its  ad- 
Pep.  248;  Higgins  v.  People,  58  N.  Y.  inissibility.  The  time  that  intervenes 
377  ;  Thompson  v.  State  (Tex.),  26  S.  is  a  subject  for  the  jury  to  consider  in 
W.  Rep.  987;  State  v.  Reid,  39  Minn,  passing  on  the  weight  of  her  evidence 
277,  280;  State  v.  Wilkins,  66  Vt.  1,  and  the  degree  of  credit  to  be  given  it 
10,  28  Atl.  Rep.  323;  State  v.  Byrne,  on  account  of  the  delay  depends  on 
47  Conn.  465,  467;  Jackson  v.  State,  the  circumstances."  The  court  in 
91  Wis.  253;  State  v.  Peter,  8  Jones  State  v.  Mulkern,  85  Me.  106, 107;  Peo- 
(N.  Car.)  19;  Maillet  v.  People,  42  pie  v.  Gage,  62  Mich.  271,  275. 
Mich.  262;  Peoples.  Brown,  53  Mich.  2Higgins  v.  People,  58  N.  Y.  377, 
531;  People  v.  Glover,  71  Mich.  303;  379;  State  v.  Knapp,  45  N.  H.  145, 
State  v.  Niles,  47  Vt.  82;  Johnson  v.  148;  Baccio  v.  People,  41  N.  Y.  265; 
State,  27  Neb.  687,  43  N.  W.  Rep.  425 ;  State  v.  Wilkins,  66  Vt.  1,  17 ;  State  v. 
Bailey  v.  Com.,  82  Va.  107,  113 ;  State  Niles,  47  Vt.  82. 

v.   Cassidy,   85   Iowa  145,   52  N.  W.  3  People  v.   Glover,    71   Mich.   303, 

Rep.  1,  2.     "Mere  lapse  of  time  be-  307;  Peoples.  Gage,  62 Mich.  271,  275. 


§412 


RAPE. 


!71 


ted,1  or  because  shame  prompted  her  to  suppress  the  fact,2  or 
that  she  was  deaf  and  dumb,3  or  was  very  young,  lived  with  the 
defendant  and  was  influenced  and  threatened  by  him.* 


§  412.  Medical  testimony. — A  physical  examination  to  pro- 
cure evidence  is  not  indispensable,5  nor  should  the  refusal  of  a 
modest  prosecutrix  to  submit  to  one  be  allowed  to  discredit  her 
as  a  witness.6  But  a  physician,  after  he  has  made  such  an 
examination,  may  state  the  age  of  the  prosecutrix,  that  he 
found  bruises  on  her,7  and  that  there  had  been  actual  penetra- 
tion,8 or  he  may  give  an  opinion  whether  penetration  9  or  com- 
plete sexual  intercourse  was  possible,10  and  whether  pregnancy 
would  ensue  if  a  rape  had  been  committed.11  Expert  testimony 
of  the  physical  strength  and  condition  of  the  prosecutrix  is 
always  received  to  show  her  ability  or  inability  to  resist.12  The 


Poison  v.  State,  137  Ind.  519,  35  N. 
E.  Rep.  907,  908;  People  v.  Terwilli- 
ger,  74  Hun  310,  37  N.  E.  Rep.  565: 

2 State  v.  Wilkins,  66  Vt.  1,  10,  28 
Atl.  Rep.  323,  327.  Whether  the  rea- 
son is  a  good  one  is  for  the  jury.  State 
■o.  Reid,  39  Minn.  277,  281 ;  Baecio  v. 
People,  41  N.  Y.  265,  271.  And  it  is 
for  them  to  estimate  the  force  and 
effect  of  the  silence  and  delay  of  the 
prosecutrix,  keeping  in  view  the  rea- 
sons which  caused  them. 

3  State  v.  DeWolf,  8  Conn.  93. 

4  State  v.  Byrne,  47  Conn.  465 ;  State 
v.  Baker,  136  Mo.  74,  37  S.  W.  Rep. 
810.  Cf.  People  r.  O'Sullivan,  104 
N.  Y.  481,  490.  "  It  is  clearly  proper  to 
show  the  reason  of  the  delay,  whether 
it  be  threats  of  the  prisoner,  inability 
caused  by  violence,  want  of  opportu- 
nity, or  the  fear  of  injury  by  the  com- 
munication to  the  only  person  at 
hand."  State  v.  Knapp,45  N.  II.  148, 
155;  People  v.  Glover,  71  Mich.  303, 
307;  People  v.  Knight  (Cal.,  1896),  43 
Pac.  Rep.  6. 

sFrazier  v.  State,  56  Ark.  242,  19  S. 
W.  Rep.  83S. 


6  Barnett  v.  State,  83  Ala.  40.  De- 
fendant can  not  insist  that  the  prose- 
cutrix, though  a  young  child,  shall 
submit  to  a  medical  examination.  It 
is  wholly  discretionary  with  the  court. 
McGuff  v.  State,  88  Ala.  147,  153. 

7  Myers  r.  State,  84  Ala.  11,  12; 
Poison  v.  State,  137  Ind.  519,  35  N.  E. 
Rep.  907.  The  fact  that,  on  an  exam- 
ination six  months  later  than  the 
alleged  rape,  the  hymen  was  found 
unruptured,  is  admissible,  the  remote- 
ness of  such  evidence  going  merely  to 
its  probative  force.  Gifford  v.  People, 
148  111.  173,  178.  Cf.  State  v.  Evans 
(Mo.,  1897),  39  S.  W.  Rep.  462. 

8  Woodin  v.  People,  1  Park.  Cr.  Rep. 
464,  467. 

9  Hardtke  v.  State,  67  Wis.  552,  554  ; 
State  v.  Watson,  81  Iowa  380,  46  N.  W. 
Rep.  868. 

10  People  v.  Clark,  33  Mich.  112; 
Proper  v.  State,  85  Wis.  615. 

11  People  v.  Tarbox,  115  Cal.  57,  46 
Pac.  Rep.  896. 

"State  v.  Knapp,  45  N.  H.  148,  154. 


472  CRIMINAL  EVIDENCE.  §  413 

medical  expert  witness  may  give  an  opinion  based  upon  a 
hypothetical  question  containing  material  facts  proved  or  as- 
sumed to  be  proved,  or  he  may  base  his  opinion  as  to  the  causes 
of  the  physical  condition  of  the  prosecutrix  upon  the  evidence 
of  another  physician  who,  having  examined  her,  describes  her 
condition  as  he  observed  it.1 

A  physician  can  not  testify  as  to  the  mental  effects  of  inde- 
cent liberties  on  a  woman's  person,2  or  whether  the  accused 
could  have  had  sexual  intercourse  with  a  woman  without  her 
consent,  without  resorting  to  extraordinary  physical  violence,3 
as  the  question  of  consent  is  for  the  jury.  The  victim's  ex- 
clamations evincing  her  present  feelings,  or  her  statements  of 
present  suffering  made  to  a  physician,  may  be  proved  by  any 
one  who  heard  them.  They  are  original  evidence,  and  whether 
the  feelings  were  or  were  not  simulated  is  for  the  jury.4 

§  413.  Relevancy  of  the  physical  condition  of  the  prosecu- 
trix.— Evidence  of  the  physical  condition  of  the  prosecutrix 
subsequent  to  the  date  of  the  alleged  rape  is  always  relevant  as 
tending  to  show  the  probability  or  improbability  that  a  rape 
was  committed.5  Non-expert  witnesses,  who  have  had  ade- 
quate opportunities  for  observation,  may  testify  to  facts  relat- 
ing to  her  condition,  if  within  their  own  knowledge,  where 
their  observation  does  not  require  or  presuppose  the  possession 
of  special  scientific  or  medical  training.6  Thus,  the  husband, 
mother  or  other  relative  of  the  prosecuting  witness  may  testify 
that  they  found  bruises  and  other  marks  of  violence  on  her 
body,7  or  to  the  condition  of  her  underclothing,  or  the  bedding 
used  by  her,  if  it  is  first  shown  that  they  were  worn  when  the 

1  State  v.  Watson,  81  Iowa  380, 46  N.  5  Myers  v..  State,  84  Ala.  11, 12, 4  So. 

W.  Rep.  868.  Rep.  291 ;  Brauer  v.  State,  25  Wis.  413, 

2 People  v.  Royal,  53  Cal.  62.  418;  Com.  v.  Allen,  135  Pa.  St.  483, 19 

3  Woodin  v.  People,  1  Park.  Cr.  Rep.  Atl.  Rep.  957;  People  v.  Baldwin 
464,  467.  (Cal.,  1897),  49  Pac.  Rep.  186. 

4  Poison  v.  State,  137  Ind.  519,  35  N.  6  State  v.  Murphy,  118  Mo.  7;  State 
E.  Rep.  907,  919;  Underhill  on  Ev.,  v.  Sanford,  124  Mo.  484,  27  S.  W.  Rep. 
§52.  Cf.  State  v.  Yociim,  117  Mo.  622,  1099;  Poison  v.  State,  137  Ind.  519, 
which  holds  that  whatever  the  female  35  N.  E  Rep.  907. 

told  her  physician  is  not  admissible.        7Hannon  v.  State,  70  Wis.  448,  451. 


§  414  rape.  473 

alleged  rape  was  committed.1  It  is  not  permissible  to  prove  a  re- 
semblance between  the  prisoner  and  a  child  born  to  the  prose- 
cutrix by  exhibiting  an  infant  three  months  old  to  the  jury,8 
nor  can  her  statement  that  the  accused  is  the  father  of  her 
child  be  received.3 

It  may  be  shown  that  the  female  was,  upon  an  examination, 
found  to  have  a  venereal  disease.  To  connect  the  accused  with 
the  rape  evidence  is  then  admissible  to  show  that  he  had  a 
similar  disease  when  he  was  arrested,  and  if  he  denies  this  he 
may  be  cross-examined  upon  his  physical  condition  at  that 
time.4 

§  414.  The  prosecutrix  as  a  witness — Her  competency  and 
credibility — Infancy  of  prosecutrix  when  rendering  her  incom- 
petent as  a  witness. — The  woman  is  competent  to  testify  to  the 
facts  of  the  rape,  though  her  evidence,  because  of  the  custo- 
mary secrecy  of  the  crime,  and  the  ease  with  which  such  a 
charge  may  be  made,  should  be  somewhat  carefully  scrutin- 
ized. It  has  been  held  that  to  sustain  a  conviction  her  evi- 
dence must  be  corroborated  on  all  material  facts  and  circum- 
stances.5    But  it  would  seem  that  in  the  absence  of  statute  the 

1  Gonzales  v.  State,  32  Tex.  Cr.  Rep.  strong  presumption  of  guilt  in  the 
611,  620.  The  clothing  worn  by  the  minds  of  the  jurors  which  the  accused 
woman  assailed,  as  well  as  that  worn  may  endeavor  to  rebut  by  proving 
by  the  accused,  may  be  received  in  that  prior  to  the  date  of  the  alleged 
evidence  to  corroborate  the  evidence  rape  the  woman  had  sexual  inter- 
of  the  prosecutrix  and  as  independent  course  with  other  men.  Nugent  p. 
evidence  to  prove  the  commission  of  State,  18  Ala.  521,  526;  State  v.  Otey, 
the  crime.  Ransbottom  v.  State,  144  7  Kan.  69,  77.  The  testimony  of  a 
Ind.  250,  43  N.  E.  Rep.  218;  States,  physician  to  the  physical  condition  of 
Murphy,  118  Mo.  7,  16,  25  S.  W.  Rep.  the  defendant,  gained  by  anexamina- 
95;  State  v.  Duffy,  124  Mo.  1,  10,  27  S.  tion  in  the  jail,  submitted  to  voluntar- 
W.  Rep.  358,  360;  McMurrin  v.  Rigby,  ily,  the  defendant  being  told  that  the 
80  Iowa  322,  324,  45  N.  W.  Rep.  877.  prosecuting  attorney  had  sent  the 
But  the  clothing  must  be  identified  as  physician  for  that  purpose  only,  is 
that  which  she  wore  at  the  time  of  the  not  privileged.  People  v.  Glover,  71 
crime.  Gonzales  v.  State,  32  Tex.  Cr.  Mich.  303,  307.  See,  also,  §  178  et  seq, 
Rep.  611.  Privileged  Communications. 

2  State  v.  Danforth,  48  Iowa  43-48.  5  Innis  v.  State,  42  Ga.  473 ;  Thomp- 

3  State  v.  Hussey,  7  Iowa  409,  411.  son  v.  State,  33  Tex.  Cr.  Rep.  472,  26 

4  People  v.  Glover,  71  Mich.  303,  305.  S.  W.  Rep.  987 ;  Mathews  v.  State,  19 
Such  a  coincidence  may  create  a  very  Neb.  330,  336-338 ;  People  v.  Kunz,  76 


474 


CRIMINAL    EVIDENCE. 


§414 


credibility  of  her  evidence  should  be  left  wholly  to  the  jury  as 
in  other  cases.  They  will  be  justified  in  convicting  the  de- 
fendant on  her  evidence  alone,  though  it  may  be  uncorrobo- 
rated, if  it  convinces  them  beyond  a  reasonable  doubt  that  the 
accused  is  guilty.1  But  her  testimony  should  be  carefully 
scrutinized,  and  court  and  jury  should  diligently  guard  them- 
selves from  the  undue  influence  of  the  sympathy  in  her  behalf 
which  the  circumstances  are  apt  to  excite.2 

A  conviction  will  not  be  sustained  if  the  prosecutrix  is  unable 
to  identify  the  prisoner.  Her  statements,  describing  the  man 
who  assaulted  her,  can  not  be  proved  at  the  trial  by  a  witness 
to  whom  she  made  them  out  of  court.3  If  the  complainant  is 
too  young  to  comprehend  the  nature  and  responsibility  of  an 
oath,  her  testimony  is  not  admissible,4  nor  are  her  statements 
made  out  of  court  permitted  to  be  proved.5  But  the  infancy  of 
the  prosecutrix  will  not  exclude  her  evidence  if  she  is  shown 
to  have  sufficient  mental  capacity  to  comprehend  and  appre- 


Hun  610,  27  N.  Y.  Supp.  945 ;  State  v. 
Connelly,  57  Minn.  482,  485,  59  N.  W. 
Rep.  479. 

1  Hammond  v.  State,  39  Neb.  252,  58 
N.  W.  Rep.  92;  State  v.  Lattin,  29 
Conn.  389;  Shirwin  v.  People,  69  111. 
55;  Givens  v.  Com.,  29  Gratt.  (Va.) 
830,  835 ;  State  v.  Hert,  89  Mo.  590, 
591;  State  v.  Wilcox,  111  Mo.  569; 
Fager  v.  State,  22  Neb.  332;  Barnett 
v.  State,  83  Ala.  40;  Lynn  v.  Com. 
(Ky.),  13  S.  W.  Rep.  74;  State  v.  Du- 
senberry,  112  Mo.  277,  296.  Cf.  State 
v.  Connelly,  57  Minn.  482,  485;  State 
v.  McLaughlin,  44  Iowa  82;  2  Bisk,  on 
Cr.  Pro.,  §963;  1  Phill.  on  Ev.,  7; 
Curby  v.  Ter.  (Ariz.,  1896),  42  Pac. 
Rep.  953.  Cf.  Mathews  v.  State,  19 
Neb.  330 ;  People  v.  Doyle  (Fla.,  1897) , 
22  So.  Rep.  272. 

2Boddie  v.  State,  52  Ala.  395,  398; 
State  v.  Hatfield,  75  Iowa  592,  596; 
Smith  v.  State,  77  Ga.  705,  711-716. 
"The  party  ravished  may  give  evi- 
dence, but  the  credibility  of  her  evi- 
dence must  be  left  to  the  jury.     If  she 


be  of  good  fame,  presently  disclosed 
the  offense  and  made  search  for  the 
offender,  these  and  like  circumstances 
give  greater  probability  to  her  testi- 
mony. If  she  be  of  evil  fame,  unsup- 
ported in  her  testimony  by  others, 
concealed  the  injury  a  considerable 
time,  and  might  have  been  heard,  yet 
made  no  outcry,  these  and  like  cir- 
cumstances create  a  strong  but  not  a 
conclusive  presumption  that  her  testi- 
mony is  incredible."  4  Bl.Comm.213. 
"When  the  woman  is  the  sole  wit- 
ness for  the  prosecution,  and  her  evi- 
dence is  impeached  and  contradicted, 
it  may  be  proved  that  she  had  made 
charges  of  a  like  nature  against  her 
brother  and  many  others  which  she 
subsequently  admitted  were  false." 
People  v.  Evans,  72  Mich.  367,  381. 

3  Brogy  v.  Com.,  10  Gratt.  (Va.)  722, 
725. 

4  Reg.    v.    Cockburn,   3   Cox   C.  C. 
543;  McMath  v.  State,  55  Ga.  303,  308. 

5  Reg.  v.  Nicholas,  2  C.  &  K.  246; 
Rex  v.  Williams,  7  C.  &  P.  320. 


§415 


RAPE. 


475 


ciate  the  nature  of  an  oath.1  Much  latitude  is  allowable  in  the 
cross-examination  of  the  prosecutrix.  She  may  be  asked  if  she 
consented  to  the  intercourse  with  the  accused,2  and  she  may 
also  be  interrogated  upon  her  silence  in  reference  thereto.  She 
may  be  asked  if  she  reported  the  outrage  to  her  priest,3  or  if 
she  said  that  the  accused  was  innocent,  and  that  his  prosecution 
was  for  blackmailing  purposes.* 

§  415.  The  prior  relations  of  the  parties. — The  state  may 
prove  improper  acts  and  solicitations  to  sexual  intercourse  by 
the  accused  toward  the  prosecutrix  prior  to  the  rape  charged, 
in  order  to  show  his  probable  motive.5  On  the  other  hand,  to 
prove  consent,  it  maybe  shown  that  the  prosecutrix  sought  the 
company  of  the  accused,6  and  that  their  relations  were  always 
friendly,  though  chaste  and  proper.7  But  evidence  that  the 
prosecutrix  knew  the  accused  was  a  man  of  bad  character,8  or 


1  Smith  v.  Com.,  85  Va.  924,  927,  9 
S.  E.  Rep.  148;  Rodgers  v.  State,  30 
Tex.  App.  510,  17  S.  W.  Rep.  1077; 
McMath  v.  State,  55  Ga.  303,  308; 
State  v.  Lattin,  29  Conn.  389.  The 
witness,  if  young  and  very  ignorant, 
may  be  plied  with  leading  questions 
by  the  prosecutor.  Ellis  v.  State,  25 
Fla.  702,  6  So.  Rep.  768.  See  §  204. 
People  v.  Baldwin  (Cal.,  1897),  49 
Pac.  Rep.  186. 

2  Woodin  v.  People,  1  Park.  Cr.  Rep. 
464. 

3Maillet  v.  People,  42  Mich.  262, 
264. 

•Shirwin  v.  People,  69  111.  55,  59; 
People  v.  Knight  (Cal.,  1896),  43  Pac. 
Rep.  6. 

5  People  v.  Manahan,  32  Cal.  68; 
State  v.  Robinson  (Ore.,  1897),  48 
Pac.  Rep.  357;  People  v.  Abbott,  97 
Mich.  484,  486;  Hardtke  v.  State,  67 
Wis.  552,  554;  State  r.  Knapp,  45 
N.  H.  148,  156;  State  v.  Patrick,  107 
Mo.  147,  155,  17  S.  W.  Rep.  666; 
People  v.  O'Sullivan,  104  N.  Y.  481, 
484;  Barnes  v.  State,  88  Ala.  204,  207 ; 


Taylor  v.  State,  22  Tex.  App.  529,545. 
Evidence  of  a  previous  attempt  to 
commit  a  rape  is  not  incompetent,  be- 
cause it  comes  from  the  prosecutrix, 
People  v.  O'Sullivan,  104  N.  Y.  481, 
484;  State  v.  Parish,  104  N.  Car.  679, 
and  she  may  be  asked  why  she  did 
not  complain  of  the  previous  at- 
tempts. People  v.  Lenon,  79  Cal. 
625,  631.  Evidence  of  other  rapes,  or 
attempts  at  rape,  by  the  defendant 
upon  the  prosecutrix  or  other  fe- 
males, is  usually  irrelevant.  Janzen 
v.  People,  159  111.  440,  42  N.  E.  Rep. 
862;  State  v.  Stevens,  56  Kan.  720, 
44  Pac.  Rep.  992;  State  v.  Thompson 
(Wash.,  1896),  44  Pac.  Rep.  533.  It 
seems,  that  such  evidence  is  admissi- 
ble to  account  for  the  absence  of  an 
outcry  and  to  explain  why  there  was 
no  laceration.  People  r.  Fultz,  109 
Cal.  258,41  Pac.  Rep.  1040;  State  v. 
Gaston  (Iowa,  1896),  65  N.  W.  Rep. 
415. 

6  Shirwin  v.  People,  69  111.  55,  61. 

7  Hall  v.  People,  47  Mich.  636. 

8  State  v.  Porter,  57  Iowa  691. 


476  CRIMINAL  EVIDENCE.  §  416 

evidence  to  show  acts  of  sexual  intercourse  by  the  accused  with 
other  women,  is  not  admissible.1 

§  416.  Proof  of  carnal  knowledge  requisite. — Despite  some 
lapk  of  harmony  in  the  early  English  cases,  it  is  now  settled 
that  an  allegation  of  carnal  knowledge  is  sustained  by  proof  of 
actual  penetration  alone;  and  it  is  not  now,  and  never  seems 
to  have  been,  required  in  America,  that  actual  emission  should 
be  proved.2  Penetration  maybe  proved  by  the  direct  evidence 
of  the  female,  though  her  evidence  is  neither  the  best  nor  the 
only  proper  evidence  of  that  fact.  It  may  be  inferred  from 
the  circumstances,  as  from  the  physical  condition  of  the  fe- 
male, the  marks  of  violence  on  her  and  her  complaints  of  pain 
and  soreness.  This  rule  is  very  important,  and  of  frequent 
application  in  the  case  of  the  rape  of  children,  who,  from 
ignorance  and  inexperience,  are  incapable  of  testifying  intelli- 
gently to  this  essential  fact.3  Proof  of  penetration  beyond  a 
reasonable  doubt  is  always  absolutely  essential.4  Evidence  that 
the  woman  voluntarily  remained  with  the  defendant  in  a  room 
all  night  is  not  sufficient  to  sustain  a  conviction.5  But  proof  be- 
yond a  reasonable  doubt  of  the  least  penetration  is  sufficient.6 

1  People  v.  Bowen,  49  Cal.  654.  The  3  Brauer  v.  State,  25  Wis.  413,  415; 
girl  may  testify  that  the  accused,  her  Taylor  v.  State,  111  Ind.  279,  280; 
father,  was  a  man  of  great  strength,  Wesley  v.  State,  65  Ga.  731,  734;  Peo- 
had  beaten  her  mother,  was  drunk  pie  v.  Crowley,  102  N.  Y.  234,  237 ; 
when  he  outraged  her,  and  that  she  Comstock  v.  State,  14  Neb.  205,  209; 
was  frightened  and  in  great  fear.  State  v.  Depoister,  21  Nev.  107,  25  Pac. 
Maillet  v.  People,  42  Mich.  262,  263.  Rep.  1000;  Givens  v.  Com.,  29  Gratt. 
Cf.  Bean  v.  People,  124  111.  576,  583.  (Va.)  830,  835. 

Statements  by  the  defendant,  made  4  Hardtke  v.  State,  67  Wis.  552,  553 ; 

months  before  the  crime,  tending  to  State  v.  Dalton,  106  Mo.  463;  State  v. 

show  his  passion  towards  the  woman,  Grubb,  55  Kan.  678. 

are  receivable.     Barnes  v.  State,  88  5  Dickey  v.  State,  21  Tex.  App.  430; 

Ala.  204.  Jacques  v.  People,  66  111.  84,  86. 

2  Comstock  v.  State,  14  Neb.  205,  6  People  v.  Crowley,  102  N.  Y.  234, 
206;  Waller  v.  State,  40  Ala.  325,332;  237;  People  v.  Courier,  79  Mich.  366, 
People  v.  Crowley,  102  N.  Y.  234,237;  367,  44  N.  W.  Eep.  571;  Brauer  v. 
State  v.  Hargrave,  65  N.  Car.  466,467;  State,  25  Wis.  413,  415;  State  v. 
Osgood  v.  State,  64  Wis.  472;  State  v.  Shields,  45  Conn.  256;  Beirley  v.  Com., 
Shields,  45  Conn.  256;  Taylor  v.  State,  82  Va.  107,  113;  Bean  v.  People,  124 
111  Ind.  279;  1  Hale  P.  C.  628;  2  Bish.  111.  576,  583.  If  the  evidence  satis- 
Cr.  Law  1085.  ties  the  jury  that    any  part  of   the 


§417 


RAPE. 


477 


§  417.  The  force  or  fraud  employed — Threats  and  mortal 
fear — Failure  to  make  outcry. — To  convict,  the  jury  must  be 
satisfied  that  the  sexual  intercouse  was  either  obtained 
by  force,  or  if  it  was  actually  obtained  by  trick  or  fraud, 
that  the  accused  intended  to  employ  force  if  the  fraud 
should  fail.1  An  actual  force  used  by  the  accused  suffi- 
cient to  create  an  apprehension  of  death  in  the  mind  of  the 
victim  need  not  be  proved.2  If  a  less  degree  of  force  is  used 
but  coupled  with  threats  to  kill  or  to  inflict  bodily  harm, 
in  fear  of  which  she  involuntarily  submits,  the  intimidation 
practiced  will  be  regarded  as  constructive  force.3  The  kind 
and  degree  of  resistance  which  must  be  exerted,  and  which 
may  reasonably  be  expected,  depend  upon  the  physical  and 
mental  condition  of  the  parties,  their  ages  and  the  relations 
existing  between  them  and  the  surrounding  circumstances. 
No  invariable  rule  can  be  laid  down*  as  to  the  amount  or  char- 


membrum  virile  of  the  accused  was 
within  the  labia  of  the  pudendum,  a 
verdict  of  guilty  should  be  rendered. 
Reg.  v.  Lines,  1  C.  &.  K.  393,  47  E.  C. 
L.  393. 

1  Com.  v.  Fields,  4  Leigh  (Va.)  648; 
State  v.  Shepard,  7  Conn.  54;  Eber- 
hart  ».  State,  134  Ind.  651,  655;  Garri- 
son v.  People,  6  Neb.  274;  McNair  v. 
State,  53  Ala.  453;  Lewis  v.  State,  30 
Ala.  54,  56;  Osgood  v.  State,  64  Wis. 
472,  474;  Reg.  v.  Stanton,  1  C.  &  K. 
415;  Reg.  v.  Cainplin,  1  C.  &  K.  746; 
States.  Urie  (Iowa,  1897),  70  N.  W. 
Rep.  603.  It  is  usually  said  that  the 
utmost  reluctance  and  resistance  by 
the  woman  should  appear.  People  v. 
Morrison,  1  Park.  Cr.  Rep.  625;  Cross- 
well  v.  People,  13  Mich.  427,  433; 
Peoples.  Abbott,  19  Wend.  192,  195; 
Whittaker  v.  State,  50" Wis.  518,  523; 
State  v.  Burgdorf,  53  Mo.  65, 67 ;  Moran 
v.  People,  25  Mich.  356;  Anderson 
v.  State,  104  Ind.  467,  474;  3  Greenl. 
on  Ev.  210.     "  The  resistance  must  be 


up  to  the  point  of  being  overpowered 
by  actual  force,  or  of  inability  from 
loss  of  strength  longer  to  resist,  or 
from  the  number  of  persons  attacking 
resistance  must  be  dangerous  or  ab- 
solutely useless,  or  there  must  be 
duress  or  fear  of  death."  People  v. 
Dohring,  59  N.  Y.  374,  382,  383;  Peo- 
ple v.  Bransby,  32  N.Y.  525,  531,  540. 

2  Waller  v.  State,  40  Ala.  325,  331. 

3  Pleasant  v.  State,  13  Ark.  360; 
State  v.  Urie  (Iowa,  1897),  70  N.  W. 
Rep.  603;  Huston  v.  People,  121  111. 
497,  499;  State  v.  Ward,  73  Iowa  532; 
State  v.  Dusenberry,  112  Mo.  277,  282, 
296;  Turner  v.  People,  33  Mich.  363; 
Huber  v.  State,  126  Ind.  185,  186. 

4  Hawkins  v.  State,  136  Ind.  630,  36 
N.  E.  Rep.  420;  Anderson  v.  State, 
104  Ind.  467,  474;  Com.  ».  McDonald, 
110  Mass.  405,  406;  Eberhart  v.  State, 
134  Ind.  651,  655;  Pomeroy  v.  State. 
94  Ind.  96;  People  v.  Dohring,  59 
N.Y.  374,  383;  Waller  v.  State,  40 
Ala.  325. 


478 


CRIMINAL    EVIDENCE. 


§417 


acter  of  the  facts  which  must  be  proved  to  show  a  reasonable 
resistance.1 

It  is  always  admissible,  as  bearing  on  the  question  of  resist- 
ance, and  consent,  to  show  that  the  woman  screamed  or  cried 
out  for  aid  when  she  was  assaulted  by  the  defendant.  And 
proof  that  she  was  silent  or  that  her  garments  were  neither 
torn,  soiled  nor  disarranged  may  also  be  received.  Such  evi- 
dence, though  by  no  means  conclusive,  is  of  weight  in  favor  of 
the  defendant  if  not  sufficiently  explained.  From  proof  of  her 
silence  at  the  time  of  the  alleged  commission  of  the  crime, 
taken  in  connection  with  evidence  of  her  mature  age  and  gen- 
eral intelligence,  the  jury  may  be  justified  in  the  inference  that 
she  consented  to  the  intercourse.2  But  her  silence  is  always 
open  to  explanation.  Hence  her  evidence  explaining  and  giv- 
ing reasons  for  her  silence,  as  for  example,  where  she  testifies 
that  she  did  not  make  an  outcry  because  she  was  gagged  or 
choked  by  the  accused,  or  because  she  was  terrified  by  his 
threats,  or  because  she  was  unconscious,  must  always  be  con- 
sidered by  the  jury  in  determining  the  evidential  value  of  her 
silence.3 

It  is  never  absolutely  necessary  to  prove  that  her  screams 
were  heard  by  every  person  who  was  within  earshot,  if  her 
statement  that  she  made  an  outcry  is  corroborated  by  some 
evidence.* 


1  "The  nature  and  extent  of  resist- 
ance, which  ought  reasonably  to  be 
expected  in  each  particular  case,  must 
necessarily  depend  very  much  upon 
the  particular  circumstances  attend- 
ing it.  It  is  quite  impracticable  to  lay 
down  any  rule  upon  that  subject  as 
applicable  to  all  cases  involving  the 
necessity  of  showing  a  reasonable  re- 
sistance." Anderson  v.  State,  104 
Ind.  467,  474;  Eberhart  v.  State,  134 
Ind.  651,  655;  Huber  v.  State,  126 
Ind.  185,  186;  Davis  v.  State  (Ark., 
1897),  39  S.  W.  Rep.  356. 


2  State  v.  Cone,  1  Jones  (N.  Car.) 
18;  Eberhart  v.  State,  134  Ind.  651, 
656;  State  v.  Cross,  12  Iowa  66,  70; 
People  v.  Morrison,  1  Park  Cr.  625, 
644;  State  v.  Brown,  54  Kan.  71,  72, 
37  Pac.  Rep.  996 ;  People  v.  Kirwan,  67 
Hun  652. 

3  State  v.  Reid,  39  Minn.  277,  279. 

4  Bean  v.  People,  124  111.  576,  580. 
Cf.  Brown  v.  Com.,  82  Va.  653;  Rey- 
nolds v.  People,  41  How.  Pr.  Rep. 
(N.  Y.)  179;  Barney  v.  People,  22  111. 
160;  State  v.  Marks  (Mo.,  1897),  41 
S.  W.  Rep.  973. 


§  418 


KA  I-K. 


479 


§  418.  Reputation  of  the  prosecutrix  for  chastity — Proof  of 
specific  unchaste  acts. — The  bad  reputation  of  the  prosecuting 
witness  for  unchastity  existing  prior  to  the  date  of  the  crime 
is  always  relevant  in  evidence  to  show  that  the  sexual  inter- 
course may  have  been  eonsented  to  by  her.1  An  exception  to 
this  rule  is  made  where  the  female  is  under  the  age  of  consent. 
Evidence  of  her  reputation  for  unchastity  or  of  acts  of  sexual 
intercourse  is  then  irrelevant  as  her  consent  is  immaterial.2 

The  cases  are  not  harmonious  upon  the  question  whether  the 
reputation  for  unchastity  of  a  woman  over  the  age  of  consent, 
existing  subsequent  to  the  date  of  the  alleged  crime,  is  ad- 
missible. The  weight  of  the  cases  is  against  it.3  The  evidence 
of  unchaste  reputation  must  come  from  a  witness  who  has  been 
a  resident  in  the  neighborhood  where  the  female  also  resided. 
The  report  of  what  a  detective  heard  about  the  woman,  on  in- 
quiring among  her  acquaintances,  is  inadmissible.4 

Acts  of  voluntary  sexual  intercourse  by  the  prosecuting  wit- 
ness with  the  defendant  prior  to  the  date  of  the  crime  may  be 
proved   by  her  extra-judicial  admissions,5  by  her  answers  on 


1  O'Blenis  v.  State,  47  N.  J.  L.  279, 
280;  Pleasant  v.  State,  15  Ark.  624, 
645-653;  People  v.  Johnson,  106  Cal. 
289 ;  People  v.  Hartman,  103  Cal.  242, 
246 ;  State  v.  Hollenbeck,  67  Vt.  34 ; 
Brown  v.  State,  72  Miss.  997 ;  State  v. 
Eberline,  47  Kan.  155 ;  State  v.  Brown, 
55  Kan.  766;  State  v.  Forshner,  43  N. 
H.  89;  Shields  v.  State,  32  Tex.  Cr. 
Rep.  498,  502;  Com.  v.  Kendall,  113 
Mass.  210,  211;  Rex  v.  Barker,  3  C. 
&  P.  589;  State  v.  Daniel,  87  N.  Car. 
507 ;  Anderson  r.  State,  104  Ind.  467, 
471 ;  State  v.  Johnson,  28  Vt.  512,  514; 
Boddie  v.  State,  52  Ala.  395,  398;  Rex 
v.  Clarke,  2  Starkie  Rep.  214.  Cf.  Fry 
v.  Com.,  82  Va.  334.  Her  bad  charac- 
ter for  chastity  may  show,  or  tend  to 
show,  that  the  prisoner  believed  he 
would  meet  with  little  or  no  resist- 
ance.    Pratt  v.  State,  19  Ohio  St.  277, 


279-.     Cf.  Myers  v.  State  (Neb.,  1897), 
71  S.  W.  Rep.  33. 

2  People  v.  Abbott,  97  Mich.  484, 
486;  People  v.  Glover,  71  Mich.  303. 

3  State  v.  Ward,  73  Iowa  532;  State 
v.  Forshner,  43  N.  H.  89,  90;  Rex  v. 
Clarke,  2  Stark.  214 ;  People  v.  Abbot, 
19  Wend.  (N.  Y.)  192.  Contra,  Rex  v. 
Barker,  3  C.  &  P.  589,  3  Greenl.  54. 

4  State  v.  Forshner,  43  N.  H.  89.  It 
may  not  be  necessary  to  prove  that 
the  reputation  for  unchastity  is  well 
known  or  ancient.  Thus  evidence  of 
the  general  reputation  of  the  prose- 
cutrix for  chastity  in  the  community 
is  relevant  where  it  appeared  that 
she  had  only  been  in  town  for  about 
twenty-four  hours,  during  which  time 
she  had  openly  solicited  sexual  inter- 
course with  several  men.  State  v. 
Brown,  55  Kan.  766,  42  Pac.  Rep.  363. 

5  State  v.  Cook,  65  Iowa  560,  562. 


480  CRIMINAL  EVIDENCE.  §  418 

her  cross-examination,1  or  otherwise.2  Such  evidence  is  rele- 
vant to  show  that  the  apparently  forced  intercourse  was  volun- 
tarily submitted  to  by  her. 

The  great  majority  of  the  cases  maintain  the  rule  that  acts 
of  sexual  intercourse  participated  in  by  the  alleged  victim  of 
the  rape  prior  to  the  date  of  the  crime  but  with  other  men  than 
the  accused  can  not  be  shown  to  prove  her  consent.3  This  rule 
is  said  to  be  based  upon  the  assumption  that  the  prosecutrix  is 
unprepared  to  confute  and  disprove  sudden  and  unexpected 
accusation  of  adulterous  acts.  In  the  main,  however,  it  is 
founded  upon  the  theory  that  no  inference  can  be  drawn  that 
she  consented  to  intercourse  with  the  accused  from  the  fact  that 
she  had  previously  submitted  to  the  embraces  of  other  men. 
Though  evidence  of  adulterous  acts  with  other  men  is  not 
generally  admissible,  evidence  of  other  acts  indicating  the  pos- 
session of  an  immoral  character  is  relevant.  Evidence  of 
drunkenness  and  dissipation,  of  the  keeping  of  late  hours  and 
of  street  walking  on  the  part  of  the  prosecutrix  will  always  be 
received.4 

Because  of  the  irrelevancy  of  adultery  with  other  men  it  has 

^edgood  v.   State,   115  Ind.  275;  643,  646;  People  v.  Abbott,  97  Mich. 

Shirwin  v.  People,  69  111.  55.  484,  486;  State  v.  Patrick,  107  Mo.  47, 

2  People  v.  Abbott,  97  Mich.  484,  17  S.  W.  Rep.  666;  State  v.  Campbell, 
486 ;  Barnes  v.  State,  88  Ala.  204,  207 ;  20  Nev.  122, 17  Pac.  Rep.  620 ;  McQuirk 
State  v.  Jefferson,  6  Ired.  (N.  Car.)  v.  State,  84  Ala.  435,  4  So.  Rep.  775; 
305;  Woods  v.  People,  55  N.  Y.  515;  People  v.  McLean,  71  Mich.  309,  38  N. 
Martin's  Case,6C.& P.  562 ;  Bedgood  u.  W.  Rep.  917;  2  Phil,  on  Ev.,  §  41!);  1 
State,  115  Ind.  275,  279;  Hall  v.  Peo-  Greenl.  Ev.  458;  Rose.  95;  State  v. 
pie,  47  Mich.  636;  State  v.  Cassidy,  85  Turner,  1  Hous.  C.  C.  (Del.)  76.  Con- 
Iowa  145,  52  N.  W.  Rep.  1;  State  v.  tra,  State  v.  Johnson,  28  Vt.  512,  513, 
Forshner,  43  N.  H.  89;  People  v.  515;  Bennett,  J.,  dissenting;  People 
Grauer,  12  App.  Div.  464,  42  N.  Y.  v.  Abbot,  19  Wend.  (N.Y.)  192;  Ben- 
Supp.  721.  stine  v.  State,  2  Lea  (Tenn.)  169,  173; 

3  State  v.  Cassidy,  85  Iowa  145,  149,  People  v.  Benson,  6  Cal.  221 ;  People 
52  N.  W.  Rep.  1 ;  State  v.  Brown,  55  v.  Knight  (Cal.,  1896),  43  Pac.  Rep.  6. 
Kan.  766;  Com.  v.  Harris,  131  Mass.  4  Brennan  v.  People,  7  Hun  (N.  Y.) 
336;  Com.  v.  Kendall,  113  Mass.  210,  171.  This  reasoning  clearly  possesses 
211;  State  v.  Fitzsimon,  18  R.  I.  236,  little  validity  or  application  where  the 
27  Atl.  Rep.  446;  Pleasants.  State,  15  accused  is  shown  to  be  a  prostitute, 
Ark.  624,648;  O'Blenis  v.  State,  47  who  disposes  of  her  favors  to  all  men 
N.  J.  L.  279;  State  v.  Knapp,  45  N.  H.  indiscriminately. 

148, 156 ;  McCombs  v.  State,  8  Ohio  St. 


§  418  rape.  481 

been  held,  according  to  the  majority  of  the  earner  cases  in  both 
England  and  America,  that  when  on  her  cross-examination  a 
question  is  put  to  the  woman  as  regards  her  illicit  relations 
with  other  men,  and  she  waives  her  privilege  of  refusing  to 
answer  and  denies  the  act,  the  accused  is  bound  by  her  an- 
swer.1 The  more  recent  cases  hold,  however,  that  the  accused 
under  such  circumstances  is  not  concluded  by  her  answer, 
though  the  matter  may  not  be  strictly  relevant;  but  may  con- 
tradict it  solely  for  impeachment,  by  proving  adulterous  actions 
with  other  men  if  they  are  not  too  remote  in  point  of  time.2 

The  admissions  of  the  defendant,  particularly  an  offer  on  his 
part  to  pay  a  certain  sum  of  money  to  the  prosecutrix  or  her 
mother  to  settle  the  matter,  are  always  relevant  against  him.3 

^eg.    v.   Cockcroft,  11  Cox   C.   C.  v.   Johnson,   28  Vt.    512;    Strang  v. 

410;  Reg.  v.   Holmes,  12  Cox  C.  C.  People,  24  Mich.  1,  7. 
137 ;  People  v.  Jackson,  6  N.  Y.  Crim.        3  Hardtke  v.  State,  67  Wis.  552 ;  Mc- 

Rep.  393.  Math  v.  State,  55  Ga.  303,  308.     But 

2  People  v.  Flaherty,  79  Hun  (N.  Y.)  evidence  to  prove  acts  of  sexual  inter- 

48;  People  v.  Knight  (Cal.,  189t>),  43  course  by  him  with  other  women  must 

Pac.    Rep.   6.     "In  determining  the  be  rejected.     People  v.   Stewart,   85 

question  of  consent,  which  is  purely  Cal.  174.     Where  the  evidence  tends 

as  to  a  mental  act,  it  is  important  to  to  show  that  the  prosecutrix  is  preg- 

ascertain  whether  her  consent  would,  nant,  and  the  accused  denies  the  sex- 

from  her  previous  habits,  be  the  nat-  ual  intercourse,  it  may  be  shown  that 

ural  result  of  her  mind,  or  whether  it  the  woman  had  intercourse  with  an- 

would  be  inconsistent  with  her  pre-  other  man  at  a  period  which  would 

vious  life   and  repugnant  to  all  her  account  for  her  pregnancy.     Bice  v. 

moral  feelings."  By  the  court  in  State  State  (Tex.,  1897),  38  S.  W.  Rep.  803. 
31— Cr.  Ev. 


CHAPTER  XXIX. 


FORGERY,    COUNTERFEITING    AND  FALSE    PRETENSES. 


§419. 

420. 
421. 

422. 


423. 


424. 
425. 


426. 
427. 


428. 


429. 


430. 


431, 


Forgery — Definition  and  clas-      §  432. 
sification. 

Competency  of  witnesses. 

Variance  in  proving  the  writ- 
ing. 433. 

Fraudulent  intent  and  guilty 
knowledge —  Circumstantial 
evidence  to  show. 

Evidence  of  similar  crimes  to 
show   the  intent — Effect    of        434. 
acquittal — Relevancy  of  pos-        435. 
session  of  forged  papers  on        436. 
charge  of  forger}^. 

Proof  of  uttering  forged  paper.        437. 

The   writing  alleged   to   have        438. 
been    forged  as   evidence — 
Primary  evidence. 

Proving  the  venue. 

Fictitious  names — Evidence  to        439. 
prove  existence  or  non-exist- 
ence of  person.  440. 

Proving  the   corporate    exist- 
ence of  the  bank  upon  which        441. 
the  forged  check  is  drawn. 

Proving  the  handwriting-"Ex-        442. 
pert  evidence— Standards  of 
comparison.  443. 

Evidence  to  show  that  the 
forged  writing  could  not  ac- 
complish the  purpose  in- 
tended. 444. 

Sufficiency   of    evidence  —  Pe- 
cuniary condition  of  the  ac-        445. 
cused. 


Counterfeiting  —  Elements  of 
the  crime — Intent  and  guilty 
knowledge — E vidence  of 
similar  offenses. 

Evidence  to  show  that  counter- 
feit money  or  implements 
for  its  manufacture  were 
found  in  the  possession  of 
the  accused. 

Resemblance  to  the  genuine. 

False  pretenses. 

Evidence  to  show  the  inten- 
tion of  the  owner. 

The  intent  to  defraud. 

Evidence  of  other  similar 
crimes  not  inadmissible  when 
relevant  to  show  the  intent 
to  defraud. 

The  pretenses  made  and  evi- 
dence to  show  their  falsity. 

The  pretenses  must  have  been 
calculated  to  deceive. 

The  value  of  the  property  ob- 
tained. 

Belief  in  the  false  representa- 
tions. 

Evidence  of  the  pecuniary  con- 
dition of  the  accused  at  the 
date  of  making  the  repre- 
sentations. 

The  false  pretenses  not  neces- 
sarily verbal. 

Proving  the  venue. 


§  419.  Forgery — Definition  and  classification. — Forgery  at 
the  common  law  is  the  fraudulent  making  or  alteration  of  a 
writing  to  the  prejudice  of  another's  right.     It  may  be  com- 

(482) 


§  420       FORGERY,  COUNTERFEITING  AND   FALSE  PRETENSES.         483 


mitted  in  any  writing,  which,  if  genuine,  would  operate  as  the 
foundation  of  another's  liability  or  the  evidence  of  his  right.1 
The  following  facts  must  be  shown.  First,  that  a  false  writ- 
ing has  been  made.  Second,  that  it  was  apparently  capable  of 
accomplishing  a  fraudulent  purpose.  And  third,  the  fraudu- 
lent intent.2 

§  420.  Competency  of  witnesses. — A  subscribing  witness  or 
a  person  taking  an  acknowledgment  to  a  forged  instrument 
may  testify  that  his  signature  is  forged.3 

In  England  at  common  law  the  obligor  on  the  forged  instru- 
ment, if  not  discharged  from  his  liability  was  incompetent 
because  of  interest.  If  the  instrument  were  genuine  he  would 
be  liable  thereon;  while,  if  it  were  a  forgery,  the  writing  was 
forfeited  to  the  crown  and  destroyed.4  This  rule,  though  fol- 
lowed in  a  few  early  cases,  is  now  universally  rejected  in  Amer- 
ica. The  obligor  is  always  competent  for  the  state,5  and  if  he 
can  be  produced  he  is  a  proper  witness  and  should  be  called 
by  the  state.6  His  interest  as  obligor  may  be  proved  to  affect 
the  credibility  of  his  evidence.7     He  is  not  an  indispensable 


1  State  v.  Thompson,  19  Iowa  299. 

2  Mr.  Bishop  thus  defines  the  crime. 
"Forgery  is  the  false  making  or  mate- 
rial altering,  with  intent  to  deceive, 
of  any  writing  which,  if  genuine, 
might  apparently  be  of  legal  efficacy 
or  the  foundation  of  a  legal  liability." 
2  Bish.  Cr.  L.  adopted  as  correct  in 
Rembert  v.  State,  53  Ala.  467,  468. 
A  fraudulent  insertion  of  additional 
words,  or  an  alteration  in  a  material 
part  of  a  true  document  by  which  an- 
other may  be  defrauded  is  a  forgery. 
State  v.  Brett,16  Mont.  360,  40  Pac.Rep. 
873,  877;  Com.  v.  Boutwell,  129  Mass. 
124,  125;  Rex  v.  Dawson,  1  Stra.  19; 
State  v.  Flye,  26  Me.  312,  318 ;  State  v. 
Floyd,  5  Strobh.  58;  State  v.  Weaver, 
13  Ired.  (N.  Car.)  491,  493;  State  v. 
Maxwell,  47  Iowa  454,  455;  State  v. 
Marvels,  2  Harr.  (Del.)  527;  Haynes 
v.  State,  15  Ohio  St.  455,  457 ;  State  v. 


Van  Auken  (Iowa,  1897),  68  N.  W. 
Rep.  454. 

3 People  v.  Sharp,  53  Mich.  523.  See 
Underhill  on  Ev.,  §138-142. 

4  2  Stark.  338,  339. 

5  Anson  v.  People,  148  111.  494,  505; 
State  v.  Bateman,  3  Ired.  (N.  Car.)  L. 
474,  479;  People  v.  Howell,  4  Johns. 
(N.  Y.)  296,  302;  State  v.  Phelps,  11 
Vt.  116,  122;  Com.  v.  Waite,  5  Mass. 
261;  State  v.  Hooper,  2  Bailey  (8. 
Car.)  37,  40;  Simmons  v.  State,  4  Ohio 
113;  Williams  r.  State  (Tex.,  1896),  32 
S.  W.  Rep.  532;  McGlasson  r.  State 
(Tex.,  1897),  40  S.  W.  Rep.  503.  Con- 
donation by  the  obligor  is  irrelevant. 
State  v.  Tull,  119  Mo.  44,  24  S.  W. 
Rep.  1010. 

6  Simmons  v.  State,  7  Ohio  116.  Cf. 
Anson  v.  People,  148  111.  494,  505. 

7  State  v.  Henderson,  29  W.  Va.  147. 


484 


CRIMINAL    EVIDENCE. 


§421 


witness.     The  falsity  of  the   writing  may  be  proved  by  other 
witnesses.1 

§  421.  Variance  in  proving  the  writing. — Any  material  vari- 
ance between  the  alleged  forged  writing  as  proved  and  as  set 
forth  in  the  indictment  is  fatal  when  the  writing  is  pleaded 
according  to  its  tenor.2  The  cases  are  strict  in  defining  the 
diversity  between  the  indictment  and  the  writing  as  proved 
which  shall  constitute  a  material  variance  and  which  shall  ex- 
clude the  alleged  forged  instrument  from  evidence. 

The  misspelling,3  or  the  omission  of  a  final  letter  from  the 
alleged  forged  name  as  proved,  or  of  a  single  figure  from  the 
amount,4  or  reversing  the  order  of  names, ^are  some  extreme 
instances  of  material  and  fatal  variance.6  KBut  other  cases  per- 
mit a  wider  latitude  in  the  proof  and  disregard  unimportant 
discrepancies  in  names  and  dates,  particularly  if  the  names  are 
idem  sonans.1     An  allegation  of  forging  a  writing  is  sustained 


1  State  v.  Farrington,  90  Iowa  673, 
57  N.  W.  Rep.  606;  Com.  v.  Smith,  6 
S.  &  R.  (Pa.)  568,  570 ;  State  v.  Hooper, 
2  Bailey  (S.  Car.)  37,  40;  Hess  v. 
State,  5  Hammond  (Ohio)  5,  2  Stark. 
585.     See  post,  §429. 

2  State  v.  Handy,  20  Me.  81,  83; 
Luttrell  v.  State,  85  Tenn.  232,239; 
Wilson  v.  State,  70  Miss.  595,  12  So. 
Rep.  332 ;  Haslip  v.  State,  10  Neb.  590, 
592;  Thomas  v.  State,  103  Ind.  419, 
435;  People  v.  Marion,  29  Mich.  31. 
Though  it  is  not  necessary  for  the 
indictment  to  describe  the  writing 
with  extreme  minuteness,  yet  when 
so  described  strict  proof  must  be  had. 
Powell  v.  Com.  (Ky.),  9  S.  W.  Rep. 
245;  State  v.  Smith,  31  Mo.  120,  121; 
Hess  v.  State,  5  Hammond  (Ohio)  5, 
9;  State  v.  Fleshman,  40  W.  Va.  726, 
22  S.  E.  Rep.  309;  Com.  v.  Wilson,  2 
Gray  (Mass.)  70,  71;  McDonnell  v. 
State,  58  Ark.  242. 

3Westbrook  v.  State,  23  Tex.  App. 
401,  403;  McClellan  v.  State,  32  Ark. 
609,  611. 


4Burress  v.  Com.,  27  Gratt.  (Va.) 
934,  944. 

5  State  v.  Lane,  80  N.  Car.  407 ;  State 
v.  Woodrow,  56  Kan.  217,  42Pac.  Rep. 
714. 

6  A  note  signed  "J.  C.  Orr"  will  not 
sustain  an  allegation  of  forging  one 
signed  "James  C.  Orr."  State  v.  Fay, 
65  Mo.  490,  494.  See  State  v.  Pease, 
74  Ind.  263,  264. 

7 People  v.  Munroe  (Cal.,  1894),  33 
Pac.  Rep.  776;  Bench  v.  State  (Ark., 
1897),  39  S.  W.  Rep.  360;  Davis  v. 
State  (Tex.,  1897),  39  S.  W.  Rep.  296; 
Agee  v.  State  (Ala.,  1897),  21  So.  Rep. 
,  207 ;  Allgood  v.  State,  87  Ga.  668, 13  S. 
E.  Rep.  569;  Sutton  v.  Com.  (Ky.),  30 
S.  W.  Rep.  661 ;  State  v.  Collins,  115 
N.  Car.  716,  20  S.  E.  Rep.  452 ;  People 
v.  Smith,103  Cal.  563,  37  Pac.  Rep.  516 ; 
Stewart  v.  State,  113  Ind.  505,  508; 
TraskV  People,  151  111.  523,  38  N.  E. 
Rep.  248 ;  Roush  v.  State,  34  Neb.  325 ; 
State'  v.  Bibb,  68  Mo.  286,  288;  State 
v.  Gryder,  44  La.  An.  962,  965;  Cross 
v.   People,  47  111.   152;   Hennessy  v. 


§  422       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         485 

by  proving  an  instrument  partly  written  and  partly  printed,1 
and  the  fact  that  the  instrument  proved  was  acknowledged, 
while  that  alleged  was  not,  is  immaterial.2 

§  422.  Fraudulent  intent  and  guilty  knowledge — Circum- 
stantial evidence  to  show. — The  intent  to  defraud  is  the  es- 
sence of  the  crime  and  must  be  proved  beyond  a  reasonable 
doubt.3  And  if  it  is  shown,  evidence  that  the  party  whose 
name  was  forged  had  no  legal  capacity  to  sign  is  irrelevant.4 

It  is  not  necessary  to  show  that  it  was  the  intention  of  the 
defendant  to  defraud  any  particular  person.  It  is  enough  that 
a  general  intent  to  defraud  is  shown.5 


State,  23  Tex.  App.  340,  354;  State  v. 
Lane,  80  N.  Car.  407,  409;  State  v. 
Blanchard,  74  Iowa  628,  38  N.W.  Rep. 
519,  520;  Langdale  v.  People,  100  111. 
263,  268;  Garmire  v.  State,  104  Ind. 
444,  446 ;  Lassiter  v.  State  (Tex.,  1896) , 
34  S.  W.  Rep.  751. 

1  State  v.  Jones,  1  McMullen  (S. 
Car.)  Law  236,  243. 

•Peoples.  Baker,  100  Cal.  188,  190; 
Lassiter  v.  State  (Tex.,  1896),  34  S.  W. 
Rep.  751.  The  peculiar  strictness  re- 
quired at  the  common  law  was  largely 
the  outcome  of  the  severity  of  the 
punishment  inflicted.  In  consequence 
of  the  more  humane  rules  now  in 
force,  a  wider  latitude  in  variance 
would  doubtless  be  allowed.  Thomas 
v.  Slate,  103  Ind.  419,  437.  See,  also, 
Reg.  v.  Wilson,  2  C.  &  K.  527.  An 
allegation  of  an  intent  to  defraud 
several  persons  is  sustained  by  prov- 
ing an  intent  to  defraud  anyone  of 
them.  McDonnell  v.  State,  58  Ark. 
242,  24  S.  W.  Rep.  105. 

'Montgomery  v.  State,  12Tex.  App. 
323,  330;  People  v.  Wiman,  148  N.  Y. 
29,  42  N.  E.  Rep.  408;  Snell  v.  State,  2 
Humph.  (Tenn.)  347;  Com.  v.  Ladd, 
1">  Mass.  526,  529;  People  v.  Stearns, 
21  AVend.  (N.  Y.)  409;  Fox  v.  People, 
95  111.  71,  75;  Elsey  v.  State,  47  Ark. 


572;  Barfield  v.  State,  29  Ga.  127 
Leonard  o.  State,  29  Ohio  St.  408 
State  v.  -Shelters,  51  Vt.  102,  105 
State  v.  Gavigan,  36  Kan.  322 ;  State  v. 
Redstrake,  39  N.  J.  L.  365,  369;  State 
v.  Williams,  66  Iowa  573;  People  v. 
Caton,  25  Mich.  388;  Couch  v.  State, 
28  Ga.  367,  368 ;  Stephens  v.  State,  56 
Ga.  604;  Com.  v.  Connolly,  11  Pa.  Co. 
Ct.  414;  Agee  v.  State  (Ala.,  1897),  21 
So.  Rep.  207.  One  who,  with  intent 
to  defraud,  utters  a  promissory  note 
as  the  note  of  a  person  other  than  the 
signer  and  procures  to  it  the  name  of 
an  innocent  person  who  does  not  there- 
by intend  it  to  bind  himself,  is  guilty 
of  forgery.  "  When  that  intent  exists 
and  the  instrument  is  the  fruit  of  it, 
the  author  can  not  escape  the  charge 
of  forgery  by  procuring  one  who  hap- 
pens to  bear  a  name  that  suits  his  pur- 
poses to  supply  him  with  a  pretended 
genuine  signature."  Com.  v.  Foster, 
114  Mass.  311,  322. 

4 People  v.  Krummer,  4  Park.  Cr. 
Rep.  217;  States.  Eades,  68  Mo.  150, 
152. 

5McClure  v.  Com.,  86  Pa.  St.  353, 
356;  State  v.  Keneston,  59  N.  II.  36, 
37;  Snell  v.  State,  2  Humph.  (Tenn.), 
347,  350;  United  States  v.  Moses,  4 
Wash.  C.  C.  726,  728;  Reg.  v.  Vaugh- 


48G  CRIMINAL  EVIDENCE.  §  42  3 

The  intent  is  always  a  question  for  the  jury.  It  may  be  in- 
ferred by  them  from  what  the  accused  does  and  says  and  from 
all  the  facts  and  circumstances  involved  in  the  transaction.1 

The  intent  may  be  inferred  from  the  circumstances  of  the  ac- 
cused doing  an  act  which  he  knows  the  law  forbids,  as  signing 
a  name  not  his  own,2  or  making  a  false  entry  to  conceal  a  pre- 
vious defalcation,3  but  not  alone  from  an  act  not  criminal  per 
se  and  which  may  be  innocent  under  particular  circumstances.4 

A  false  or  fictitious  entry  or  written  instrument  may  be 
made  by  mistake,  or  for  book-keeping  purposes,  or  a  forged 
writing  may  be  innocently  uttered.  Guilty  knowledge  is  al- 
ways material.  It  must  be  strictly  proved,  though  direct  and 
positive  evidence  is  not  required  if,  from  existing  circum- 
stances, it  may  be  inferred  that  the  accused  knew  the  fraudu- 
lent character  of  the  transaction,  as  where  he  makes  a  false 
statement  that  he  was  the  payee  of  the  alleged  forged  note.5 

§  423.  Evidence  of  similar  crimes  to  show  intent — Effect  of 
acquittal — Relevancy  of  possession  of  forged  papers  on  charge 
of  forgery. — Evidence  of  similar  forgeries,  or  of  the  possession 
of  forged  papers  about  the  same  time,  is  admissible  to  show  a 
uniform  course  of  acting  from  which  guilty  knowledge  and 
criminal    intent    may  be  inferred,6  though  an    indictment    is 

an,  8  C.  &  P.  276,  281.     Cf.  Com.  v.  Reg.  v.  Geach,  9  C.  &  P.  499,  503.     In 

Brown,   147  Mass.  585,  18  N.  E.  Rep.  proving  a  charge  of   uttering  forged 

Rep,  587;  Hendersons.  State,  14  Tex.  writings,  it  must  be  proved  that  the 

503,  517;  Green  v.  State  (Tex.,  1896),  accused  knew  they  were  forged.  State 

35  S.  W.  Rep.  971.  v.  Lowry,  42  W.  Va.  205,  24  S.  E.  Rep. 

1  State  v.  Williams,  66  Iowa  573,  561;  Sands  v.  Com.,  20  Gratt.  (Va.) 
575;  Timmons  v.  State,  80  Ga.  216,  4  800,  823;  United  States  v.  Mitchell, 
S.  E.  Rep.  766;  Reg.  v.  Cooke,  8  C.  &  Bald.  C.  C.  367;  Com.  v.  Searle,  2 
P.  582,  585.  Binn.   (Pa.)  332;    Miller  v.  State,  51 

2  State  v.  Hahn,  38  La.  An.  169,  172 ;  Ind.  405,  406. 

Smith  v.  State  (Tex.,  1896),  32  S.  W.  6  Langford  v.  State,  33  Fla.  233,  242; 

Rep.  696;  United  States  v.  Houghton,  Carver  v.  People,  39  Mich.  786,  788; 

14  Fed.  Rep.  544,  549.  People  v.  Everhardt.    104  N.  Y.  591, 

3 Phelps  v.  People,  72  N.  Y.  365,  6  594;    People   v.   Bibby,   91    Cal.   470, 

Hun  428.  477;    Fox  v.   People,   95  111.  71,   75; 

4  Fox  v.  People,  95  111.  71.  State  v.  Myers,  82  Mo.  558,  564  570; 

5 State   v.    Williams,   66    Iowa    573,  Peoples.  Frank,  28  Cal.  507,515  ;  Com. 

575;  Parker  r.  People,  97  111.  32,  38;  r.  Russell,  156 Mass.  196,  30  N.  E.  Rep. 


§  423       FORGERY,  COUNTERFEITING  AND  FALSE  PRETEN8BS.         487 

pending  against  the  accused  for  the  other  acts.1  Evidence  that 
the  accused  had  been  indicted  for  another  forgery,  or  for  hav- 
ing forged  papers  in  his  possession,  is  not  inadmissible  because 
he  had  been  acquitted.  The  acquittal  merely  exempts  him 
from  punishment  and  from  another  prosecution.  It  does  not 
necessarily  show  that  he  was  innocent.2 

Proof  of  possession  and  of  use  of  forged  papers,  whether  by 
the  accused  or  by  an  accomplice,  is  admissible  whether  before 
or  after  the  date  of  the  alleged  forgery  for  which  the  accused  is 
upon    trial.3     But  the  admission   by  the  accused  of  any  facts 


763;  Hermessy  v.  State,  23  Tex.  App. 
340;  Deverew.  State,  5  Ohio  Cr.  Ct. 
Rep.  509;  United  States  v.  Burns,  5 
McLean  23;  Anson  v.  People,  148  111. 
494,  503,  35  N.  E.  Rep.  145;  Strang  v. 
State,  32  Tex.  Cr.  App.  219,  22  S.  W. 
Rep.  G80;  State  v.  Minton.  116  Mo. 
605,  613;  State  9.  McAllister,  24  Me. 
139,  143;  Com.  v.  Edgerly,  10  Allen 
(Mass.)  184,  186,  187;  State  v.  T wit- 
ty, 2  Hawks  (N.  Car.  L.)  248,  258; 
Martin  v.  Com.,  2  Leigh  (Va.)  745, 
749;  Harding  v.  State,  54  Ind.  359; 
Thomas  v.  State,  103  Ind.  419,  432; 
Card  v.  State,  109  Ind.  415,  421 ;  Com. 
v.  Stearns,  10  Met.  256;Wash  v.  Com., 
16Gratt.  (Va.)  530;  Com.  v.  Turner,  3 
Met.  19,  24;  Com.  v.  Stone,  4  Met.  43, 
47;  Smith  v.  State,  29  Fla.  408,421; 
Lindsey  v.  State,  38  Ohio  St.  507; 
United  States  v.  Craig,  4  Wash.  C.  C. 
729 ;  State  ^.Williams,  2  Rich.(S.  Car.) 
418;  Bishop  v.  State,  55  Md.  138,  141. 
Cf.  People  v.  Sanders,  114  Cal.  216,  46 
Pac.  Rep.  153.  It  is  error  not  to  warn 
the  jury  against  accepting  such  evi- 
dence as  proof  of  the  corpus  delicti. 
Anson  v.  People,  148  111.  494,  504 
Francis  ».  State,  7  Tex.  App.  501 
Carver  v.  People,  39  Mich.  786,  788 
People  v.  Everhardt,  104  N.  Y.  591, 
594. 

1  Com.  v.  White,  145  Mass.  392,  395 ; 
State  v.  Williams,  2  Rich.  (S.  Car.)  L. 


418;  State  v.  McAllister,  24  Me.  139, 
143;  United  States  v.  Doebler,  1  Bald. 
C.  C.  519,  527;  Bell  v.  State,  57  Md. 
108, 115. 

2  Bell  v.  State,  57  Md.  108,  117;  Mc- 
Cartney v.  State,  3  Ind.  353, 354 ;  State 
v.  Houston,  1  Bailey  (S.  Car.)  L.  300, 
303;  State  v.  Jesse,  3  Dev.  &  Bat.  (N. 
Car.)  L.  98,  103,  108,  109;  State  v. 
Robinson,  16  N.  J.  L.  507,  508,  509. 
In  McCartney  v.  State,  3  Ind.  353,  on 
pp.  354  and  355,  the  court  says :  "  We 
can  see  no  reason  why  the  fact  that  an 
indictment  had  been  found,  or  that  a 
conviction  or  acquittal  had  been  had 
upon  it,  should  affect  the  admissibility 
of  such  evidence  of  uttering.  Neither 
the  indictment,  nor  the  record  of  con- 
viction or  acquittal  need  be,  nor,  it 
strikes  us  (though  that  point  is  not  for 
decision  in  this  case),  should  be  given 
in  evidence.  The  fact  of  the  uttering 
alone  and  its  attendant  circumstances 
can  be  proved  as  though  no  indict- 
ment had  been  found.  Nor  do  we 
think  that  the  fact  that  some  of  the 
other  counterfeits  purported  to  be 
upon  banks  different  from  that  on 
which  the  indictment  being  tried  was 
based,  should  render  the  evidence  in- 
admissible. It  might  affect  its  force 
but  not,  we  think,  its  competency." 

3  Com.  v.  Price,  10  Gray  (Mass.) 
472,  476;   Com.  v.  Coe,  115  Mass.  481, 


488  CRIMINAL  EVIDENCE.  §  423 

concerning  the  false  instrument  found  in  Lis  possession,  or 
which  he  is  shown  to  have  uttered,  is  not  receivable,1  though 
his  admissions  or  statements  of  any  fact  regarding  the  note 
with  whose  forgery  he  is  charged  are  always  receivable.2 

Evidence  of  the  possession  of  forged  papers  by  the  accused 
or  by  an  accomplice,3  while  always  admissible  upon  the  ques- 
tion of  intent,  is  never  conclusive  upon  the  general  issue  of 
the  guilt  of  the  accused.  The  fact  that  a  forged  writing  is 
found  in  the  defendant's  possession  raises  no  presumption  of 
law  that  he  forged  it  or  any  other  writing.4  The  possession  or 
uttering  may  be  proved  upon  a  charge  of  forgery,  but  merely 
as  a  circumstance  to  be  considered  by  the  jury.  The  defend- 
ant should  then  be  allowed  to  prove  any  facts  which  may  rebut 
the  possible  inference  of  guilt  or  of  guilty  knowledge.5  If, 
however,  it  is  proved  to  the  satisfaction  of  the  jury  that  the 
accused  had  forged  notes  in  his  possession,  with  the  plates  or 
other  instruments  used  in  forging  them,  a  prima  facie  case  is 
made  out  against  him.  Such  facts,  unexplained,  may  create 
as  strong  a  presumption  that  the   person   in  whose   possession 

501;  Com.   v.   Hall,   4  Allen   (Mass.)  received  against  him  unless  a  concert 

305,  306;  Com.   v.  White,    145   Mass.  of  action  is  proved  between  them  or  it 

392,  395;  Harding   v.   State,  54  Ind.  appears    that   she   was   cognizant    of 

359,365;    1  Greenl.,   §53.     See   ante,  their  character  and  of  the  connection 

note.     It  is  not  necessary  to  prove  of  the  accused  with  them.     People  v. 

that  they  were  technically  forgeries  if  Thorns,  3  Park.  »Cr.  Rep.  (N.  Y.)  256, 

they  were  fabricated  with  an  intent  to  271. 

deceive.     People  v.  Altman,  147  N.Y.  3  United  States  v.  Hinman,  1  Bald. 

473;    Com.  v.  Ayer,  3  Cush.  (Mass.)  C.  C.  292. 

150,   152;    Com.  v.  Hinds,   101  Mass.  4  Miller  v.  State,  51  Ind.  405,406; 

209,  210;    Com.  v.  White,   145  Mass.  Fox  v.  People,  95  111.  71,  75. 

392,  395.  5  People  v.  Everhardt,  104  N.  Y.  591, 

People  v.  Corbin,  56  N.Y.  363,365;  595.     Proof  of  the  existence  or  the 

Anson  v.   People,    148  111.  494,  506;  production   of    the    collateral   forged 

Fox  v.  People,  95  111.  71,  75.  writings     is     always     indispensable. 

2  Thus  it  may  be  shown  that  he  had,  State   v.  Breckenridge,  67   Iowa  204, 

after  indictment,  released  a  judgment  205;  Fox  v.  People,  95  111.  71,  74;  An- 

taken  on  the  note  without  considera-  son  v.  People,  148  111.  494,  506;  Reg.  v. 

tion.     Burdge  v.    State,   53   Ohio   St.  Cooke,  8  C.  &  P.  582;  3  Greenl.  on  Ev., 

512,  42  N.  E.  Rep.  594.   Evidence  that  §§  107-113.    Cf.  Reed  v.  State,  15  Ohio 

forged  notes  were  found  in  the  posses-  217,  and  Barnes  v.  Com.  (Ky.,  1897), 

sion  of  the  wife  of  the  accused  is  not  41  S.  W.  Rep.  772. 


§  424       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         489 

they  were  found  is  the  actual  forger,  as  the  possession  of  stolen 
goods  creates  that  the  one  in  whose  possession  they  are  found 
is  the  actual  thief.  Both  presumptions  may  be  repelled  by 
proof.  But  in  the  absence  of  any  explanation  the  inference 
may  be  as  strong  in  the  one  case  as  in  the  other.1 

§  424.  Proof  of  uttering  forged  paper. — Proof  that  a  forged 
writing  was  delivered  to  a  person  for  value  with  an  intent  to 
pass  it  as  good,  or  was  used  to  obtain  money  or  credit,  directly 
or  indirectly,  is  enough  to  sustain  a  charge  of  uttering.2  It 
must  also  be  proved  that  there  was  a  declaration  or  assertion, 
either  by  language  or  actions,  that  the  signature  was  valid  and 
the  instrument  good.3 


Spencer's  Case,  2  Leigh  (Va.)  751, 
757;  Gardner  v.  State,  96  Ala.  12,  11 
So.  Rep.  402;  State  v.  Morgan,  2  Dev. 
&  B.  348;  State  v.  Britt,  3  Dev.  122; 
State  o.  Lane,  80  N.Car.  407,  409.  "The 
conditions  to  the  introduction  of  such 
evidence  are  that  where  such  instru- 
ments are  offered  in  proof  of  guilty 
knowledge,  there  must  be  strict  proof 
that  they  are  forgeries,  and  the  for- 
gery, possession  or  uttering  must,  in 
point  of  time  or  circumstances,  be  so 
near  the  commission  of  the  alleged 
offense,  that  the  inference  arises  that 
the  defendant  must  have  intended  by 
the  principal  forgery  to  perpetrate  a 
fraud,  or  knew  the  instrument  was 
spurious."  3  Greenl.  Ill;  Rose.  95; 
Anson  v.  People,  148  111.  494,  504; 
People  v.  Whiteman,  114  Cal.  338,  46 
Pac.  Rep.  99. 

2 State  v.  Redstrake,  39  N.  J.  L. 
365;  State  v.  Horner,  48  Mo.  520, 
522;  People  v.  Ah  Woo,  28  Cal.  205, 
212;  People  v.  Brigham,  2  Mich.  550; 
United  States  v.  Mitchell,  1  Bald.  C. 
C.  366;  People  v.  Rathburn,  21  Wend. 
(N.  Y.)  509;  Thurmond  v.  State,  25 
Tex.  App.  366,  8  S.  W.  Rep.  473;  Es- 


palla  v.  State,  108  Ala.  38,  19  So.  Rep. 
82;  State  v.  Sherwood,  90  Iowa  550. 
The  note  must  have  been  parted  with 
or  tendered  or  offered  in  some  way  to 
get  money  or  credit.  Rex  v.  Shukard, 
Russ.  &  Ry.  Cr.  Cas.  Res.  200.  A  per- 
son is  guilty  of  forgery,  notwithstand- 
ing he  intends  ultimately  to  take  up 
the  forged  paper,  and  although  he  sup- 
poses that  the  man  whose  name  is 
forged  will  suffer  no  loss.  If  the  jury 
are  satisfied  that  the  accused  knew 
the  writing  was  forged,  and  uttered  it 
as  true  and  believed  that  the  party  to 
whom  he  offered  it  would  advance 
money  upon  it,  they  have  ample  evi- 
dence of  an  intent  to  defraud.  That 
the  forged  bill  has  since  been  paid  by 
the  prisoner  is  immaterial  if  the  of- 
fense was  complete  at  the  time  of  the 
uttering.  Reg.  v.  Geach,  9  C.  &  P. 
499,  505. 

3  People  r.  Brigham,  2  Mich.  550; 
Chahoon  v.  Com.,  20  Gratt.  CVa.)  733; 
Folden  v.  State,  13  Neb.  328, 14  N.  W. 
Rep.  412,  413;  Couch  v.  State,  28  Ga. 
367,  368;  Com.  v.  Searle,  2  Binn- 
(Pa.)  332;  Koch  v.  State  (Ala.,  1897;, 
22  So.  Rep.  471. 


490  CRIMINAL  EVIDENCE.  §  425 

§  425.  The  writing  alleged  to  have  been  forged  as  evidence — 
— Primary  evidence. — This  must  usually  be  produced  in  evi- 
dence by  the  prosecution,  or  its  absence  satisfactorily  accounted 
for.1  It  is  immaterial  that  it  is  badly  written,  if  it  is  decipher- 
able.2 Its  meaning  may  be  ascertained  by  parol  evidence; 
and,  if  it  is  ambiguous,  the  jury  may  infer  its  true  meaning 
from  all  the  evidence.3  Where  the  alleged  forged  writing  is 
shown  to  have  been  lost  or  destroyed,  or  is  beyond  the  juris- 
diction or  suppressed  by  the  accused,  or  if  it  is  so  mutilated 
that  its  identity  is  unascertainable,  its  contents  may  be  proved 
by  secondary  evidence.4  If  the  state  alleges  that  the  writing 
is  in  the  hands  of  the  accused,  or  his  friends,  it  must  prove  a 
seasonable  demand  on  him  or  his  counsel  before  secondary 
evidence  is  admissible.5  The  best  evidence  in  the  possession 
of  the  state  is  always  required.  If  a  copy  exists,  oral  proof 
will  be  rejected,  and  the  copy  must  be  produced.6 

A  photograph  is  admissible  to  prove  the  language  of  the 
writing  wThen  the  ink  has  faded,  if  it  is  shown  by  any  witness 
that  it    is    literally    reproduced.     But  when    the  question  is, 

1  State  u.  Breckenridge,  67  Iowa  204;  State  v.  Potts,  4  Halst.  (N.  J.)  26;  3 

Haun  v.  State,  13  Tex.  App.  383,  387 ;  Greenl.,  §  107 ;  2  Bish.  Cr.  Pro.,  §  433 ; 

Butler  v.  State,  22  Ala.  43;  Manaway  3  Arch.  Cr.  Prac.  555;  4  C.  &  R.    P. 

v.  State,  44  Ala.  375,  379;  2  Arch.  Cr.  254.     On  the  general  subject  of  notice 

PI.  &  Pr.  395;  2  Bish.  Cr.  Pro.  387.  to  produce  writings,  see  Underhill  on 

2Hagar  v.  State,  71   Ga.    164,    166;  Ev.,  §126. 
McGarr  v.  State,  75  Ga.  155,  158.  6  Thompson  v.   State,    30   Ala.    28; 

8  McGarr  v.  State,  75  Ga.  155,  158.  Com.  v.  Snell,  3lMass.  82,  86;  Pendle- 

4Thornley  v.  State   (Tex.,   1896),  34  ton's  Case,  4  Leigh  (Va.)  694;  State 

S.  W.  Rep.  264 ;  Mead  v.  State,  53  N.  J.  v.  Ford,  2  Root  (Conn.)  93.     When  it 

L.  601,  605;  State  v.  Potts,   4  Halst.  is  sought  to  prove  the  forged  paper  by 

(N.  J.)  26;  State  v.  Davis,  69  N.  Car.  a  certified  or  examined  copy,  under  a 

313,  317;  Henderson  v.  State,  14  Tex.  statute  permitting  such  proof,  it  must 

503,511.     See  Underhill  on  Ev.,  §130,  appear  from  the  copy  itself  that  all 

132.  the  requirements  of  the  statute  have 

5  State  v.  Lowry,  42  W.  Va.  205,  24  been   rigidly   complied   with,   or  the 

S.   E.  Rep.   561;  Rollins  v.  State,  21  copy    may    be    rejected.      The    copy 

Tex.    App.    148,    152;    Henderson   v.  should  be  supplemented  by  the  oath 

State,    14  Tex.   503,   511;    Devere  v.  of  some  competent  witness  that  it  is  a 

State,  5  Ohio  Cir.  Ct.  Rep.  509;  John-  true  and  correct  copy.     Underhill  on 

son  v.  State,  9  Tex.  App.   249,   258;  Ev.,  §142c;  Johnson  v.  State,  9  Tex. 

State  v.  Flanders,  118  Mo.  227,  237,  App.  249,  258. 
239;  State  v.  Saunders,  68  Iowa,  370; 


§426      FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.        491 

does  the  photograph  exactly  reproduce  the  form,  color  and 
shading  of  the  original?  supplementary  expert  evidence  may 
be  required.1 

§  426.  Proving  the  venue. — The  difficulty  of  proving  the 
locality  in  which  the  writing  was  actually  forged,  because  of 
the  customary  secrecy  by  which  this  act  is  accompanied,  is 
elsewhere  adverted  to.2  It  need  only  be  said  in  this  place 
that  the  possession  of  forged  instruments,  or  the  uttering  of 
them  in  the  county  where  the  indictment  was  found,  is  strong 
evidence  in  law  that  the  forgery  was  committed  in  the  same 
county.3 

§  427.  Fictitious  names — Evidence  to  prove  existence  or 
non-existence  of  persons. — Forgery  is  committed  when  a  ficti- 
tious name,4  or  the  name  of  a  dead  person,5  is  signed  to  an 
instrument  with  a  fraudulent  intent.  Hence,  evidence  is 
relevant,  which  shows  or  tends  to  show  the  existence  or  non- 
existence of  the  person  who  is  supposed,  or  pretended  to  be 
indicated  by  the  name.  But  the  state  need  not  prove  beyond 
a  reasonable  doubt  that  there  was  no  such  person.6  A  resi- 
dent of  the  town  in  which  he  is  alleged  to  have  lived  is  com- 
petent to  prove  that  he  was  unknown  there,  though  the  wit- 
ness may  not  be  able  to  swear  absolutely  that  he  knew  every 
resident.7     It  may  be  shown  in  general  that  policemen,  post- 


muffin  v.  People,  107  111.  113,  122. 
See  Underhill  on  Ev.,  §  38a,  132. 

2  See  ante,  §  37. 

3  State  v.  Yerger,  86  Mo.  33 ;  State 
v.  Rucker,  93  Mo.  88,  90;  Spencer's 
Case,  2  Leigh  (Va.)  751,  757. 

4LascelIesw.  State,  90  Ga.  347,  16 
S.  E.  Rep.  945;  Rex  v.  Bolland,  1 
Leach  C.  C.  97;  Ex  parte  Hibbs,  26 
Fed.  Rep.  421,  423;  Johnson  v.  State 
(Tex.,  1896),  33  S.  W.  Rep.  231 ;  State 
Hahn,  38  La.  An.  169,  170;  People  v. 
Krummer,  4  Park.  Cr.  Rep.  217;  State 
v.  Minton,  116  Mo.  605,  610;  State  v. 
Vineyard,  16  Mont.  138,  40  Pac.  Rep. 


173, 175 ;  People  v.  Brown,  72  N.Y.  571 ; 
Com.  v.  Costello,  120  Mass.  358,  370 ; 
Thompson  v.  State,  49  Ala.  16;  Peete 
v.  State,  2  Lea  (Tenn.)  513;  State  v. 
Covington,  94  N.  Car.  913;  State  v. 
Baumon,  52  Iowa  68;  Peoples.  War- 
ner, 104  Mich.  337,  62  N.  W.  Rep.  405, 
406 ;  Davis  v.  State,  34  Tex.  C.  Rep. 
117,  29  S.  W.  Rep.  478. 

5  Brewer  v.  State,  32  Tex.  C.  Rep. 
74,  22  S.  W.  Rep.  41. 

6  State  v.  Allen,  116  Mo.  548,  22  S. 
W.  Rep.  792. 

7  Com.  v.  Meserve,  154  Mass.  64,  71, 
27  X.  E.  Rep.  997,  998. 


492  CRIMINAL  EVIDENCE.  §  42S 

men  and  residents  had  never  heard  of  him,1  and  that  an  officer 
of  the  court,  as  a  sheriff,  though  he  made  a  diligent  search 
among  persons  most  likely  to  know  him,  was  unable  to  find 
him,  or  to  secure  any  information  of  his  whereabouts.2  The 
searcher  may  state  what  he  did  and  the  fact  that  he  had  a 
conversation  with  some  one,  and  with  whom,  and  could  get 
no  information,  though  he  may  not  repeat  answers  made  to 
his  inquiries  (as  these  would  be  hearsay)  for  the  purpose  of 
proving  the  fictitious  character  of  the  person.3  Evidence  of 
this  sort,  proving  prima  facie  the  non-existence  of  the  person 
whose  name  was  signed,  may  be  sufficient  in  the  absence  of 
rebuttal.  The  defendant  may  prove  any  facts  by  which  the 
inference  that  the  name  is  fictitious  may  be  overcome.  So, 
when  it  was  shown  that  no  one  could  be  found  to  answer  to 
the  name  which  was  signed,  the  accused  was  allowed  to  show 
that  the  person,  being  threatened  with  a  criminal  prosecution, 
had  left  the  state,  and  that  he  had  endeavored  in  vain  to  find 
him.4 

§  428.  Proving  the  corporate  existence  of  the  bank  upon 
which  the  forged  check  is  drawn. — The  existence  of  the  bank 
must  be  shown  under  an  allegation  of  forging  bank  notes  or 
checks.5  The  charter  or  articles  of  incorporation  need  not  be 
produced.  It  is  enough  to  prove  the  existence  of  the  bank  de 
facto  by  parol  evidence  that  it  had  a  banking  house,  issued 
bills  and  exercised  banking  powers,6  or  by  the  production  of  a 

1  State  v.  Hahn,  38  La.  An.  169,  172.  s  People  v.  Jones,  106  N.Y.  523,  526 ; 

2 People  v.  Sharp,  53  Mich.  523,  525.  Wiggins  v.  People,  4  Hun  (N.  Y.)  540. 

The  extent  of  the  search  goes  to  the  4  Com.   v.  Costello,  119  Mass.   214, 

weight  not  to  the  competency  of  this  215. 

evidence.     When  the  accused  having  5  State  v.  Murphy,  17  R.  I.  698,  707 ; 

signed  a  fictitious  name  has  procured  Com.  v.  Smith,  6  S.  &  R.  (Pa.)  568, 

some  one  to  represent  himself  as  of  570. 

that  name,  the  state  may  prove  the  6  Cady  v.  Com.,  10  Gratt.  (Va.)  776, 

falsity  of  that  person's  statement  re-  779;   People  v.  Caryl,  12  Wend.  547, 

garding  his  business,  residence,  occu-  548;   People  v.  Chadwick,  2  Park.  Cr. 

pation  and  ownership    of    property.  Cases,  163,165;   Dennis  v.  People,  1 

This  is  so,   even   when  the  accused  Park.  Cr.  Cases  469,  473. 
admits  the  name  is  fictitious.    Com.  v. 
Costello,  120  Mass.  358,  359. 


§  429       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         493 

note  whose  genuineness  is  proved  or  admitted,1  and  in  the  case 
of  a  foreign  bank  by  reputation,2  whether  the  intent  charged 
was  to  defraud  the  bank  or  an  individual.3 

§  429.  Proving  the  handwriting — Expert  evidence — Stand- 
ards of  comparison. — Expert  evidence  is  admissible  to  prove 
the  genuineness  or  falsity  of  the  handwriting.4  The  expert 
may,  as  a  rule,  state  his  opinion  based  upon  a  comparison 
made  by  him  of  the  forged  instrument  with  any  writing  proved 
to  have  been  made  by  the  defendant,  whether  it  has  been  in- 
troduced in  evidence  or  not.5  This  would  seem  the  most  reasona- 
ble rule,  but  some  cases  hold  that  the  standard  of  comparison 
can  be  selected  only  from  writings  which  are  relevant,  and 
which  are  actually  introduced  as  evidence.6  The  court  must 
first  find  as  a  matter  of  fact  that  the  standard  was  written  by 
the  accused  before  it  should  go  to  the  expert  or  to  the  jury. 
Press  copies  and  copies  made  by  machine  can  not  be  used  as 
standards.7     Any  one  who  is  familiar  with  a  person's  writing 


1  People  v.  Davis,  21  Wend.  (N.  Y.) 
309,  313 ;  People  v.  Peabody,  25  Wend. 
(N.  Y.)  472,  473. 

2  People  v.  Ah  Sam,  41  Cal.  645; 
People  v.  D'Argencour,  18  N.  Y. 
Weekly  Dig.  532;  Sasser  v.  State,  13 
Ohio  453;  Cady  v.  Cora.,  10  Gratt. 
(Va.)  776,  779;  Reed  v.  State,  15  Ohio 
217;  Stone  v.  State,  20  N.J.  L.401. 

3  Dennis  v.  People,  1  Park.  Cr.  Rep. 
469,  473.  Contra,  Jones  v.  State,  5 
Sneed  346,  347. 

4  Birmingham  Bank  v.  Bradley,  108 
Ala.  205,  19  So.  Rep.  791. 

5Mallory  v.  State  (Tex.,  1896),  36 
S.  W.  Rep.  751 ;  State  v.  Calkins,  73 
Iowa  128,  131 ;  State  v.  Farrington, 
90  Iowa  673,  57  N.  W.  Rep.  606; 
State  v.  Phair,  48  Vt.  366;  State 
v.  Bibby,  91  Cal.  470,  476;  State 
v.  Tompkins,  71  Mo.  613,  616;  State  v. 
David,  131  Mo.  380,  33  S.  W.  Rep.  28. 
See,  on  this  subject,  Underhill  on  Ev., 


§§  140,  141 ;  State  v.  Scott,  45  Mo.  302; 
State  v.  Shinborn,  46  N.  H.  497,  501. 

6  People  v.  Parker,  67  Mich.  222, 
224;  Merritt  v.  Campbell,  79  N.  Y. 
625 ;  Hynes  v.  McDermott,  82  N.  Y. 
41,  52;  Vinton  v.  Peck,  14  Mich.  287, 
293,  294;  Van  Sickle  v.  People,  29 
Mich.  61,  64;  State  v.  Clinton,  67  Mo. 
380,  383,  385 ;  State  v.  Scott,  45  Mo. 
302,  305;  Manaway  v.  State,  44  Ala. 
375 ;  Moore  v.  United  States,  91  U.  S. 
270,  274 ;  Morgan's  Case,  1  Mood.  &  R. 
134;  People  v.  Schooley,  149  N.  Y.  99. 
The  papers  to  be  used  as  standards  of 
comparison  must  be  admitted,  ac- 
knowledged or  otherwise  proved  to  be 
in  the  handwriting  of  the  accused. 
State  v.  Ezekiel,  33  S.  Car.  115,  116; 
People  v.  Parker,  67  Mich.  222,  228. 

7  Com.  v.  Eastman,  1  Cush.  (Mass.) 
189.  The  condition  of  a  person, 
whether  drunk  or  sober,  when  he 
wrote  the  standard,  is  competent. 
People  v.  Parker,  67  Mich.  222,  228. 


494  CRIMINAL  EVIDENCE.  §  430 

from  having  seen  him  write,  or,  never  having  seen  him  write, 
from  carrying  on  a  correspondence  with  him,  or  from  opportu- 
nities afforded  from  frequently  handling  writings  known  to 
have  been  written  by  the  person,  is  competent,  as  a  non-ex- 
pert, to  give  his  opinion  as  to  the  genuineness  of  his  signa- 
ture.1 The  weight  of  the  evidence  to  prove  the  genuineness  of 
handwriting,  whether  given  by  experts  or  by  those  who  know 
the  party's  handwriting,  is  wholly  for  the  jury,  who,  of  course, 
may  be  guided  in  their  deliberations  by  the  instructions  of  the 
court  relative  to  the  force  and  credibility  of  expert  evidence. 
But  as  a  matter  of  law,  evidence  of  witnesses  who  know  the 
handwriting  of  the  accused,  to  the  effect  that  the  signature  to 
the  alleged  forged  writing  is  not  his,  is  of  little  value,  as  the 
forger  seeks  to  disguise  his  own  handwriting  and  to  imitate 
that  of  the  man  whose  signature  he  forges.2  On  the  other  hand, 
it  is  not  relevant  to  show  that  the  accused  was  skilled  in  imi- 
tating writing.3  The  guilt  or  innocence  of  the  accused  is  not 
to  be  determined  on  such  grounds.  No  inference  of  guilt  can 
be  established  by  proving  that  the  accused  "had  the  ability  to 
commit  the  crime.4 

§  430.  Evidence  to  show  that  the  forged  writing  could  not 
accomplish  the  purpose  intended. — It  may  be  shown  by  produc- 
ing the  writing  itself  that  it  could  not,  in  law,  be  employed  to 

1  De  La  Motte's  Case,  21  How.   St.  tures  to  them  though  he  may  never 

Tr.  564,  810;  State  v.  Hooper,  2  Bailey  have  seen  the  person  write.     May  v. 

(S.  Car.)  37,42;   State  v.  Gay,  94  N.  State,   14    Ohio  461;     United   States 

Car.  814,  819;   State  v.  Stair,  87  Mo.  v.   Keen,   1   McLean  429;    People  v. 

268;  State  v.  Farrington,  90  Iowa  673,  Caryl,  12  Wend.  (N.  Y.)  547;  Com.  v. 

57  N.  W.  Rep.  606;   State  v.  Minton,  Carey,  2  Pick.  (Mass.)  47.     As  to  tes- 

116  Mo.  605,  22  S.  W.  Rep.  808;  Com.  timony  by  person   familiar  with  the 

v.  Smith,  6  S.  &  R.  (Pa.)  568,  571 ;  handwriting  of  the  accused,  see  Un- 

Thomas  v.   State,  103  Ind.   419,  429.  derhill  on  Ev.,  §  159. 

The  letters  received  may  be  produced  2  Langdon  v.  People,   133  111.  382, 

and  identified,  and  the  genuineness  of  394;   People  v.  Sanders,  114  Cal.  216, 

their   signatures    proved  by   another  46  Pac.  Rep.  153. 

witness  to  corroborate  the  first.  Thom-  3  State  v.  Hopkins,  50  Vt.  316,  332. 

as  v.  State,  103  Ind.  419,  429 ;  1  Greenl.  4  The  subject  of  comparison  of  hand- 

577 ;   Rose.  174,  175.     Any  person  ac-  writing  is  fully  discussed  in  Underhill 

customed  to  receive,  handle  or  pay  out  on  Ev.,  §  140,  et  seq. 
bank-notes  may  testify  to  the  signa- 


§431       FORGERY,  COUNTERFEITING  AND  FALSE   PRETENSES.        495 

defraud  or  prejudice  any  person.1  If  this  fact  is  shown  to  the 
satisfaction  of  the  jury  the  accused  should  be  acquitted.  It 
matters  not  how  clearly  a  fraudulent  intent  may  be  proved,  a 
writing  which  is  upon  its  face  illegal  or  innocuous,  or  which 
is  intrinsically  void  and  incapable  of  creating  a  legal  obli- 
gation, as,  for  example,  an  unattested  will,  or  a  mere  letter  of 
recommendation,  is  not  enough  to  support  a  charge  of  forgery. 
But  extrinsic  circumstances  may  be  proved  showing  how  such 
a  writing  may  have  been  used  to  defraud.2  If  the  writing  pur- 
ports to  be  a  valid  instrument  it  is  enough,3  nor  is  it  neces- 
sary to  show  that  any  particular  person  has  been  defrauded 
if  the  writing  was  effectual  for  that  purpose.4 

§  431.  Sufficiency  of  evidence — Pecuniary  condition  of  the 
accused. — The  wreight  of  evidence  is  for  the  jury.  They  may 
be  justified  in  convicting  the  accused  upon  proof  of  a  few  essen- 
tial facts,  if  they  are  convinced  of  his  guilt  beyond  a  reasona- 
ble doubt.  The  evidence  of  the  person  whose  name  was  forged 
to  that  fact,  with  proof  that  the  accused  had  passed  the  forged 
check  or  other  instrument,  or  had  obtained  money  or  credit 
thereon,  may,  unless  rebutted  or  explained,  be  sufficient.5 

It  may  be  shown  that  a  person  accused  of  forging  a  deed  had 
a  record  title  to  the  property  conveyed,6  or  that  shortly  before 

1  Waterman  v.  People,  67111.91,93;  Ohio  St.  128,  130;  State  v.  Dalton,  2 
People  v.  Tomlinson,  35  Cal.  503.  Murph.(N.Car.)  379;  Bennett  v.  State, 

2  Howell  v.  State,  37  Tex.  591 ;  Com.  62  Ark.  516,  36  S.  W.  Rep.  947 ;  State 
v.  Hinds,  101  Mass.  209;  People  v.  v.  Van  Auken  (Iowa,  1896),  68  N.  W. 
Stearns,  21  Wend.  (N.  Y.)  409,  414;  Rep.  454.  Whether  a  paper  is  so  im- 
People  v.  Shall,  9  Cow.  (N.  Y.)  778;  perfect  and  inaccurate  as  not  to  de- 
State  v.  Smith,  8  Yerg.  (Tenn.)  150,  ceive  a  man  of  ordinary  prudence  is  a 
152;  People  v.  Tomlinson,  35  Cal.  503,  question  for  the  jury.  State  v.  "War- 
507 ;  Brown  v.  People,  86  111.  239,'242 ;  ren,  109  Mo.  430,  19  S.  W.  Rep.  191. 
Com.  r.Ladd,  15  Mass.  526,  527;  Rem-  s  United  States  v.  Turner,  7  Pet. 
bert  v.  State,  53  Ala.  467,  469,  471 ;  Ex  (U.  S.)  132,  134. 

parte  Finley,  66  Cal.  262,  263;   Peo-  4  State  v.  Hahn,  38  La.  An.  169,  172; 

pie    v.     Galloway,     17     Wend.     540,  State  v.  Gullette,  121  Mo. 447,26  S.  W. 

541  ;    State  v.  Wheeler,  19   Minn.  98,  Rep.  354. 

100;    Roode    v.    State,    5    Neb.    174,  5Allgood  v.  State,  87  Ga.  668;  Hen- 

177;    Rex   v.    Moffatt,   2   Leach   483;  derson  v.  State,  14  Tex.  503. 

United   States  v.   Williams,    14   Fed.  6 Peoples.  Parker,  67  Mich.  222,  227, 

Rep.  550,  552-554;  Henry  v.  State,  35  34  N.  W.  Rep.  720. 


496  CRIMINAL  EVIDENCE.        '  §  432 

uttering  the  forged  deed  he  claimed  the  land  under  another 
deed.  A  genuine  deed  on  record  is  not  notice  to  the  prisoner, 
and  can  not  be  proved  to  bring  home  to  him  knowledge  that 
his  own  deed  was  a  forgery.  Constructive  or  actual  notice  of 
the  genuine  deed  is  not  a  substitute  for  guilty  knowledge  in  a 
criminal  trial.1 

As  an  exception  to  the  general  rule  the  pecuniary  condition 
of  the  accused  may  sometimes  be  shown,  as,  for  example, 
where  he  stands  charged  with  forging  a  receipt  for  money  al- 
leged to  have  been  paid  by  him.  The  fact  that  he  was  impe- 
cunious immediately  before  or  at  the  date  of  the  receipt  may 
justify  the  inference  that  no  money  was  paid  and  that  the 
receipt  was  forged. 

§  432.  Counterfeiting — Elements  of  the  crime — Intent  and 
guilty  knowledge — Evidence  of  similar  offenses. — It  must  be 
shown  to  the  satisfaction  of  the  jury  that  the  defendant  uttered 
the  note2  with  the  intention  to  defraud  the  person  receiving  it, 
or  some  other  person  through  him,  and  that  the  note  uttered 
was  a  counterfeit.  The  existence  of  the  bank  by  which  the 
note  purports  to  have  been  issued  need  not  be  shown,3  even 
when  the  court  permits  an  expert  to  testify  that  a  bill  submit- 
ted to  his  inspection  is,  in  his  opinion,  a  counterfeit.4  The 
knowledge  of  the  defendant  that  he  was  passing  counterfeit 
money  must  be  shown. 

Evidence  that  the  defendant  was  seen  several  times  in  com- 
pany with  another  person  when  the  latter  passed  counterfeit 
bills,5  and  evidence  to  show  that  the  accused  and  some  third 
person  had  conspired  to  pass  counterfeit  money,  or  that  a  coun- 
terfeit had  been  passed  by  some  person  resembling  the  defend- 
ant,6 or  that  he  had,  about  the  same  time,  knowingly  uttered 

'Pearson  v.  State,  55  Ga.  659,  662.        472;  State  v.  Hayden,   15  N.  H.  355, 
2United  States  v.  Weikel,  8   Mont.     359 ;  Kennedy  v.  Com. ,2  Met.   Ky.)  36. 

124,  19  Pac.  Rep.  396.  4  Jones  v.  State,  11  Ind.  357,  360. 

3  State  v.   Cole,  19  Wis.    129,    135;        5  States.  Spalding,  19  Conn.  233,  238. 

People  v.  Peabody,  25  Wend.  (N.  Y.)        6  People  v.  Clarkson,  56  Mich.  164, 

165. 


§  433       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         497 

a  counterfeit,1  or  that  he  had  been  indicted  and  convicted  at 
another  time  for  the  same  offense,2  is  always  admissible  to 
show  the  criminal  intent.  And  the  defendant's  declarations 
when  passing  other  counterfeit  money  may  be  proved  against 
him  for  the  same  purpose.3  But  evidence  of  similar  offenses 
is  only  admissible  to  prove  guilty  knowledge,  never  solely  to 
show  that  the  bill  or  coin  was  a  counterfeit.  The  inference  of 
guilty  knowledge  which  the  jury  may  draw  from  such  evidence 
may  be  rebutted.  Thus  the  defendant  may  bring  out  facts  and 
circumstances  tending  to  show  that  he  was  so  drunk  as  not  to 
know  what  he  was  doing;4  he  supposed  the  money  was  gen- 
uine; that  it  was  so,  in  fact,  and  may  also  prove  that  his  be- 
lief in  the  genuineness  of  the  money  was  founded  upon  infor- 
mation derived  from  the  most  approved  sources.5 


§  433.  Evidence  to  show  that  counterfeit  money  or  imple- 
ments for  its  manufacture  were  found  in  the  possession  of  the 
accused. — The  possession  of  implements  or  appliances,  such  as 
plates  and  dies  adapted  or  designed  for  making  counterfeit 
coin  or  bills,  or  the  possession  of  the  counterfeits,  with  a 
knowledge  of  their  spurious  character,  and  with  an  intent  to 
pass  them,  is,  in  many  states,  a  felony  by  statute.6  And  the 
finding  of  tools  or  machinery7  for  the  coining  of  money,  or  of 


1  State  v.  Cole,  19  Wis.  129,  134; 
Com.  v.  Stearns,  10  Mete.  (Mass.)  256, 
258;  Com.  v.  Bigelow,  8  Mete. (Mass.) 
235,  236;  Hendrick's  Case,  5  Leigh 
(Va.)  707 ;  Steele  v.  People,  45  111.  152, 
157;  State  v.  Tindall,  5  Harr.  (Del.) 
488,  490;  United  States  v.  Noble,  5 
Cranch  (U.  S.)  371.  If  it  is  sought  to 
prove  that  defendant  passed  other 
counterfeit  bills  of  the  same  denomi- 
nation, and  in  the  same  bank,  they 
should  have  been  produced,  if  within 
reach  of  the  prosecution.  State  v. 
Cole,  19  Wis.  129,  135;  People  v.  La- 
grille,  1  Wheel.  Cr.  Cas.  412;  Reed  v. 
State,  15  Ohio  217;  Com.  v.  Edgerly, 
10  Allen  (Mass.)  184,  186. 
32— Cr.  Ev. 


2  McCartney  v.  State,  3  Ind.  353. 

3  State  v.  Smith,  5  Day  (Conn.)  175, 
178 ;  Com.  v.  Edgerly,  10  Allen  (Mass.) 
184,  186. 

4  Jones  v.  State,  11  Ind.  357,  360. 

5  State  v.  Morton,  8  Wis.  167. 

6  The  criminal  intention  of  the  pos- 
session must  be  proved.  People  v. 
White,  34  Cal.  183,  187;  Hutchins  v. 
State,  13  Ohio  198,  200. 

7  State  v.  Antonio,  3  Brev.  (S.  Car.) 
562;  Hess  v.  State,  5  Ohio  5,  9. 
Whether  he  knew  the  false  character 
of  the  money  in  his  possession  is  for 
the  jury.  United  States  v.  Stevens, 
52  Fed.  Rep.  120. 


498 


CRIMINAL    EVIDENCE. 


§434 


spurious  coin,1  in  defendant's  possession,  even  subsequently  to 
the  act  for  which  he  is  indicted,2  may  always  be  proved  for  the 
purpose  of  showing  guilty  knowledge  and  criminal  intent.3  But 
the  accused  must  be  allowed  to  explain  his  possession,  in  order 
to  rebut  any  presumption  that  may  arise  against  him.4  The 
possession  must  be  exclusive  and  actual.  The  fact  that  coun- 
terfeiters' tools  were  found  in  the  possession  of  the  wife  of  the 
accused  is  not  relevant  where  he  exercised  no  control  over 
them.5 

§  434.  Resemblance  to  the  genuine. — This  is  a  question  for 
the  jury,6  and  must  be  proved  by  evidence  that  will  show  an 
imitation  or  a  resemblance  that  will  deceive  persons  of  ordinary 
intelligence  and  powers  of   observation.7     Expert  evidence  is 


1  Stalker  v.  State,  9  Conn.  341,  343  ; 
United  States  v.  Hinman,  1  Baldw. 
292;  People  v.  Thorns,  3  Park.  C.  Rep. 
256, 262,  270 ;  State  v.  Twitty,  2  Hawks 
(N.  Car.)  248,  258;  State  v.  Bridgman, 
49  Vt.  202,  210 ;  People  v.  White,  34 
Cal.  183,  189.  The  counterfeit  money 
found  must,  it  seems,  be  similar  in 
kind  to  that  for  uttering  which  he  is 
on  trial.  Bluff  v.  State,  10  Ohio  St. 
547. 

2  Com.  v.  Price,  10  Gray  472,  476; 
Reg.  v.  Forster,  6  Cox.  C.  C.  521 ;  Bot- 
tomley  v.  United  States,  1  Story  136. 

3  "The  object  of  the  testimony  is  not 
to  convict  or  accuse  him  of  other 
crimes,  but  to  establish  the  fact  of 
such  a  knowledge,  on  his  part,  of  the 
true  character  of  the  bill  uttered  by 
him,  and  which  is  proved  to  be  coun- 
terfeit, as  will  justify  the  jury  in  in- 
ferring his  guilt.  So  far.  as  this  may 
be  deemed  a  departure  from  the  tech- 
nical rules  of  evidence,  it  is  a  depart- 
ure justified  by  the  peculiar  nature  of 
the  crime  of  passing  counterfeit  mon- 
ey, which  consists  not  in  the  fact  of 
passing,  which  may  be  done  by  an  in- 
nocent person,  but  in  the  guilty  knowl- 


edge connected  therewith."     Com.  v. 
Bigelow,  8  Mete.  (Mass.)  235. 

4  United  States  v.  Burns,  5  McLean 
(U.  S.)  23;  United  States  v.  King,  5 
McLean  (U.  S.)  208;  United  States  v. 
Craig,  4  Wash.  (U.  S.)  729. 

5  People  v.  Thorns,  3  Park.  C.  Rep. 
(N.  Y.)  256,  262.  It  may  be  proved 
that  the  prisoner  attempted  to  utter 
the  note  at  different  times  and  places, 
where  it  had  been  suspected  and  chal- 
lenged as  false,  that  he  had  declared 
it  to  be  genuine  and  true ;  or  that  he 
attempted  to  secrete  himself,  or  to 
destroy  a  note  found  on  him.  State 
v.  Smith,  5  Day  (Conn.)  175,  178.  A 
person  who,  in  concert  with  the  po- 
lice, buys  counterfeit  money  of  the 
accused  for  the  purpose  of  entrapping 
him,  is  not  an  accomplice,  and  the 
rule  requiring  corroboration  does  not 
apply  to  him.  People  v.  Farrell,  30 
Cal.  316. 

6  United  States  v.  Stevens,  52  Fed. 
Rep.  120. 

'State  v.  McKenzie,  42  Me.  392, 
394 ;  People  v.  Osmer,  4  Park.  Cr.  R. 
242,  244.     See  ante,  §  430. 


§  435       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         499 

admissible  to  prove  the  genuineness  of  the  alleged  counterfeit,1 
though  it  seems  that  experience  acquired  in  judging  bank  notes 
when  receiving,  handling  and  paying  them  out  does  not  nec- 
essarily qualify  a  witness  as  an  expert  upon  the  genuineness  of 
the  signatures.2 

§  435.  False  pretenses. — At  common  law  defrauding  a  per- 
son of  money  or  of  other  property  by  mere  lying  was  no  offense. 
It  was  necessary  to  prove  that  the  fraud  was  accomplished  by 
means  of  some  false  token  or  writing,  or  by  means  of  false 
weights  or  measures,  or  that  there  was  a  conspiracy  to  defraud. 
In  other  words,  besides  the  intention  to  cheat  it  must  be  shown 
that  the  means  employed  were  such  as  would  deceive  persons 
who  used  due  diligence  and  precautions.3  But  this  rule  that 
to  obtain  money  or  property  by  mere  lying  did  not  constitute 
a  crime,  was  found  inadequate  as  soon  as  the  employment  of 
commercial  credit  became  general  in  consequence  of  the  in- 
crease of  commerce,  domestic  and  foreign.  Hence  by  statute, 
30  George  II.,  ch.  24,  it  was  enacted  that  "All  persons  who 
knowingly  and  designedly,  by  false  pretense  or  pretenses,  shall 
obtain  from  any  person  moneys,  goods,  wares  and  merchandise 
with  intent  to  cheat  or  defraud  any  person  of  the  same  shall 
be  deemed  offenders  against  law  and  the  public  peace."  The 
crime  of  false  pretenses  is  distinct  from  larceny  in  the  follow- 
ing particulars :  If  the  evidence  shows  that  the  trick  or  fraud 
practiced  resulted  only  in  inducing  the  owner  of  the  property 
to  part  with  the  naked  possession  of  the  same,  he  intending  to 
retain  in  himself  his  right  and  title  as  owner,  the  taking  will 
be  larceny  only ;  but  if  the  owner  intended  not  only  to  part 
with  possession  but  with  the  title  or  right  of  property  in  the 
goods,  the  offense  is  false  pretenses.4 

1  United  States  v.  Keen,  1  McLean  292,  293;  People  v.  Babcock,  7  Johns. 
(U.    S.)  429;  Hess  v.   State,  5   Ohio     (N.   Y.)   200,    204;     Rex   v.    Lara,   6 

5,  7;  Keating  v.  People,  160  111.  480,  T.  R.  565;  State  v.  Patillo,  4  Hawks 
43  N.  E.  Rep.  724.  (N.  Car.)  348;  State  v.  Stroll,  1  Rich. 

2  State  v.  Allen,  1  Hawks  (N.  Car.)     (S.  Car.)  244;  State  v.  Justice,  2  Dev. 

6,  10.     See  ante,  §  429.  (N.  Car.)  199,  201. 

8  Com.  v.  Warren,  6  Mass.  72,  73;  42  Russell  on  Crimes,  29;  Smith  v. 
People  v.  Johnson,  12  Johns.  (N.  Y.)     People,  53   N.  Y.  Ill,  114;  Lewer  v. 


500  CRIMINAL  EVIDENCE.  §  43G 

If  the  accused,  having  obtained  legal  possession  of  the  goods 
with  the  owner's  consent,  and,  as  a  bailee  or  trustee,  afterwards 
converts  them  to  his  own  use  he  is  guilty  of  embezzlement 
only.  To  constitute  the  crime  of  false  pretenses  it  must  be 
proved  that  the  accused,  at  the  time  of  the  taking  of  the  property, 
was  acting  dishonestly  and  with  a  fraudulent  intent  and  that 
he  then  and  there,  by  false  pretenses,  induced  the  owner  to 
part  with  both  the  title  and  the  possession.1 

§  436.  Evidence  to  show  the  intention  of  the  owner. — It  will 
thus  be  seen  that  the  intention  of  the  owner  as  respects  his 
title  to  the  property  is  of  the  greatest  importance,  for  it  is  upon 
his  intention  that  the  character  of  the  crime  depends.  He  may 
always  testify  to  the  intention  with  which  he  transferred  the 
property  to  the  accused.2  He  may  relate  in  evidence  at  length 
the  circumstances  under  which  the  transfer  was  made,  includ- 
ing everything  that  was  said  or  done,  either  by  him  or  by  the 
accused,  as  a  part  of  the  res  gestse;  and  from  these  circum- 
stances the  jury  may  infer  that  he  consented  to  divest  himself 
of  his  title  in  the  property  upon  the  strength  of  the  false  repre- 
sentations.3 

Four  essential  facts  must  be  proved  to  constitute  the  crime 
of  false  pretenses.  First,  the  intent  to  defraud  some  particu- 
lar person  or  people  generally.  Second,  an  actual  fraud  com- 
mitted. Third,  the  false  pretense,  and  fourth,  that  the  fraud 
resulted  from  the  employment  of  the  false  pretense.4 

§  437.  The  intent  to  defraud. — An  intent  to  defraud  must 
always  be  proved  5  beyond  a  reasonable  doubt.     The   intent  is 

Com.,  15  S.   &  R.    (Pa.)  93;  Cline  v.  2  Com.  v.  Drew,  153  Mass.  588,  595. 

State,  43  Tex.  494,  497;  Miller  v.  Com.,  3Com.  v.  Schwartz,  92  Ky.  510,  513. 

78  Ky.  15,  19;  State  v.  Anderson,  47  Of.  State  v.  Vaughan,  1  Bay  (S.  Car.) 

Iowa  142,  145;  People  v.  Rae,  66  Cal.  282,  283;  State  v.  Benson,  110  Mo.  18, 

423,   425;  Zink  v.   People,    77   N.  Y.  21. 

114;  Canter  v.  State,  7  Lea  (Tenn.)  4  Com.  v.  Drew,    19  Pick.    (Mass.) 

349,  350;  People  v.  Martin,  102  Cal.  179;    State  v.  Clark,  46   Kan.  65,66; 

558;  Jones  v.  State,  93  Ga.  547,  553;  People  v.  Jordan,  66  Cal.  10,  12;  Peo- 

Com.  v.  Call,  21  Pick.  (Mass.)  515.  pie  v.  Wakely,  62  Mich.  297,  303. 

1  Com.  v.  Barry,  124  Mass.  325,  327.  5  Sharp  v.  State,  53  N.  J.  L.  511,  513 ; 


§  437       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         50l 

always  a  question  for  the  jury.1  The  intent  to  defraud  may  be 
inferred  from  the  facts  and  circumstances  of  the  case,  as,  for 
example,  from  the  fact  that  the  representations  were  false  and 
that  the  accused  knew  they  were  so  when  he  made  them.2  And 
where  the  alleged  fraudulent  transaction  is  at  all  complicated, 
it  is  competent  to  prove,  not  only  the  facts  constituting  the 
transaction  itself,  but  also  all  facts  and  circumstances  involved 
in  the  steps  preliminary  thereto,  and  all  facts  which  tend  to 
show  the  course  of  dealing  between  the  parties  before  and  after 
the  date  of  the  offense  laid  in  the  indictment.  The  widest  lat- 
itude is  allowed.  All  available  information  should  be  received 
and  no  circumstances  should  be  excluded  which  will  throw,  or 
tend  to  throw,  any  light  upon  the  intent  of  the  parties,  or  upon 
the  falsity  of  the  representations.3 

An  intention  upon  the  part  of  the  defendant  to  pay  for  the 
property  obtained,  or  to  return  the  money  procured  by  false 
pretenses,  is  immaterial.  Hence  the  defendant  can  not  prove, 
to  rebut  the  intent  to  defraud,  that  he  promised  to  repay,  or 
that  he  was  able  or  willing  to  repay,4  or  actually  did  repay,  per- 
sons from  whom  money  had  been  obtained.5 

Carlisle  v.  State,  76  Ala.  75;   Todd  v.  State  v.  Rivers,  58  Iowa  102,  110;  Peo- 

State,  31  Ind.  514,  516 ;  State  v.  Fields,  pie  v.   Shelters,    99  Mich.  333,   334; 

118  Ind.  491,  492;  Bowler  v.  State,  41  People  v.  Winslow,  39  Mich.  505,  506. 

Miss.  570,  578;  People  v.  Kendall,  25  As  to   deeds,   letters  and    telegrams 

Wend.  399,  401;  Com.  v.  Devlin,  141  forming   a  part  of  the  res  gestce,  see 

Mass.  423,  430;  People  v.  Baker,   96  Com.  v.  Jeffries,  89  Mass.  548,  561,  and 

N.  Y.  340,  349;  People  t>.  Getchell,  6  State  v.  Alexander,  119  Mo.  447,  462. 
Mich.  496,  504.  4 People  v.  Oscar,  105  Mich.  704,  63 

1  State  v.  Norton,  76  Mo.  180,  182;  N.  W.  Rep.  971;  People  v.  Lennox 
Brown  v.  People,  16  Hun  (N.  Y.)  535,  (Mich.,  1896),  64  Mich.  488;  Com.  v. 
537 ;  People  v.  Thomas,  3  Hill  (N.  Y.)  Coe,  115  Mass.  481,  503 ;  Com.  v.  Ma- 
169 ;  Parmelee  v.  People,  8  Hun  (NY.)  son,  105  Mass.  163 ;  State  v.  Thatcher, 
623;  Dorsey  v.  State,  110  Ala.  38,  20  35  N.  J.  L.  445,  448;  Peoples.  Weiger, 
So.  Rep.  629.  100  Cal.  352;  Reg.  v.  Naylor,  10  Cox 

2  People  v.Herrick,  13  Wend.  (NY.)  C.  C.  149;  Boulton's  Case,  1  Den. 
87,91;  State  v.Walton,  114 N.  Car. 783,  C.  C.  508,  509;  State  v.  Hill,  72  Me. 
787 ;  People  v.  Baker,  96  N.  Y.  340,  2  238,  242 ;  Com.  v.  Schwartz,  92  Ky.  510, 
N.  Y.  Cr.  Rep.  218.  Cf.  People  v.  514.  Contra,  People  v.  Herrick.  13 
Getchell,  6  Mich.  496,  505.  Wend.  (N.  Y.)  87,  92. 

'People  v.  Gibbs,  98  Cal.  661,  665;        5Com.  v.  Howe,  132  Mass.  250,  261. 


502 


CRIMINAL    EVIDENCE. 


§438 


§  438.  Evidence  of  other  similar  crimes  not  inadmissible 
when  relevant  to  show  the  intent  to  defraud. — Evidence  of 
similar  offenses,  involving  the  making  of  other  false  representa- 
tions, is  admissible  against  the  prisoner  to  show  that  he  was 
aware  of  the  falsity  of  the  statements  made  by  him  in  the  pres- 
ent instance,  and  that,  knowing  them  to  be  false,  he  made 
them  with  the  intent  to  deceive.1  Evidence  of  similar  false 
pretenses  is  particularly  relevant  when  it  appears  that  the 
fraudulent  act  for  which  the  accused  is  on  trial  does  not  stand 
alone,  but  is  a  part  of  a  scheme,  not  merely  to  defraud  one  in- 
dividual, but  to  swindle  the  community  at  large.2 

§  439.    The  pretenses   made   and  evidence  to   show  their 

falsity. — The  burden  of  proving  the  nature  of  the  representa- 
tions is  always  upon  the  prosecution.  An  indictment  charg- 
ing two  or  more  false  pretenses  is  sustained  by  proving  one  or 
more  of  them.3  Having  proved  the  making  of  the  pretenses, 
the  burden  remains  upon  the  state  to  prove  their  falsity.4     The 


1  Hutcherson  v.  State  (Tex.,  1896), 
35  S.  W.  Rep.  375;  Martin  v.  State 
(Tex.,  1896),  35  S.  W.  Rep.  976;  Peo- 
ple v.  Henssler,  48  Mich.  49 ;  State  v. 
Walton,  114  N.Car  783,  18  S.E.  Rep. 
945;  Trogdon  v.  Com.,  31  Gratt.  (Va.) 
863,  871-875 ;  State  v.  Myers,  82  Mo. 
558;  State  v.  Long,  103  Ind.  481,  485; 
State  v.  Jackson,  112  Mo.  585,  589; 
Com.  v.  Eastman,  1  Cush.  (Mass.)  189; 
Com.  v.  Jeffries,  7  Allen  (Mass.)  548; 
State  v.  Lapage,  57  N.  H.  245;  Biel- 
achofsky  v.  People,  3  Hun  (N.  Y.)  40; 
Mayer  v.  People,  80  N.  Y.  364,  372 ; 
Strong  v.  State,  86  Ind.  208,  213.  Con- 
tra, State  v.  Bokien,  14  Wash.  403; 
44  Pac.  Rep.  889;  People  v.  Garrahan, 
46  N.  Y.  S.  497.    „ 

2Rafferty  v.  State,  91  Tenn.  655, 
666;  Carnell  v.  State  (Md.,  1897),  36 
Atl.  Rep.  117;  .Com.  v.  Howe,  132 
Mass.  250,  260;  Com.  v.  Coe,  115  Mass. 
481,  501 ;  People  v.  Henssler,  48  Mich. 
49,  53 ;  Strong  v.  State,  86  Ind.  208, 
217;  Com.   v.  Blood,   141   Mass.  571, 


576.  But  independent  fraudulent  acts 
unconnected  with  the  crime  in  ques- 
tion were  rejected  in  Todd  v.  State,  31 
Ind.  514,  519;  Com.  v.  Jackson,  132 
Mass.  16,  21.  "  The  entire  history  of 
the  fraud  may  be  shown.  If  the  facts 
disclose  that  other  similar  crimes 
have  been  committed,  this  does  not 
render  them  incompetent."  Com.  ». 
Blood,  141  Mass.  571,  575. 

3  Woodruff  v.  State,  61  Ark.  157,  32 
S.  W.  Rep.  102;  Limouze  v.  People, 
58  111.  App.  314;  State  v.  Vandimark, 
35  Ark.  396,  402;  Skiff  v.  People,  2 
Park.  Cr.  Rep.  139, 146;  Todd  v.  State, 
31  Ind.  514,  523;  Rex  v.  Ady,  7  C.  & 
P.  140;  Com.  v.  Morrill,  8  Cush.  571, 
574;  State  v.  Mills,  17  Me.  211:  Web- 
ster v.  People,  92  N.  Y.  422,  427;  Peo- 
ple v.  Blanchard,  90  N.  Y.  314,  319; 
2  Bish.  Cr.  Pro.  136,  137. 

4  Babcock  v.  People,  15  Hun  (N.  Y.) 
347,  352;  Bowler  v.  State,  41  Miss. 
570,  577;  State  v.  Wilbourne,  87  N. 
Car.  529,  532. 


§439      FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.        503 

admissions  of  the  defendant  tending  to  show  the  falsity  of  the 
representations  made  by  him,  though  not  usually  enough  to 
sustain  a  conviction,  unless  corroborated,1  may  always  be  re- 
ceived in  evidence  against  him,2  their  weight  being  left  to  the 
jury,  who  must  determine  whether  the  representations  made 
were  false  or  true.  Direct  evidence  to  establish  the  falsity  of 
the  representations  is  not  indispensable.  This  may  be  inferred 
from  evidence  of  circumstances  which  tend  legitimately  and 
necessarily  to  show  it.3  The  false  representation  must  be  of 
some  material  fact,  as  distinct  from  a  mere  promise  or  opin- 
ion.4 Only  such  pretenses  can  be  proved  as  relate  to  events 
past  or  present  which  are  complete  and  certain.  The  repre- 
sentations must  be  of  such  a  character  that  their  truth  or  falsity 
can  be  determined.  This  necessarily  can  not  be  done  where 
the  representations  relate  to  future  events  which  are  uncertain 
and  contingent,  or  where  they  consist  of  promises  or  vague 
opinions  concerning  the  truth  of  which  no  person  can  tell  any- 
thing.5 


1  State  v.  Lewis,  45  Iowa  20,  22; 
State  v.  Penny,  70  Iowa  190,  190. 

2  State  v.  Long,  103  Ind.  481. 

3  People  ».  Pinckney,  67  Hun  428, 
430. 

4  2  Bish.  Cr.  L.  429. 

5  Dillingham  v.  State,  5  Ohio  St.  280, 
285 ;  Rex  v.  Codrington,  1  C.  &  P.  661 ; 
People  v.  Morphy,  100  Cal.  84,  87; 
Com.  v.Drew,  19  Pick. (Mass. )179, 185; 
Com.  v.  Warren,  94  Ky.  615,  619; 
Com.  v.  Moore,  99  Pa.  St.  570,  574; 
Gray  v.  State,  55  Ala.  86;  Ryan  v. 
State,  45  Ga.  128,  129;  Thomas  v. 
State,  90  Ga.  437,  440;  Keller  v.  State, 
51  Ind.  Ill,  117;  Com.  v.  Stevenson, 
127  Mass.  446,  449;  In  re  Snyder,  17 
Kan.  542,  557;  State  v.  Green,  7  Wis. 
571;  State  v.  Phifer,  65  N.  Car.  320, 
325;  State  v.  Daniel,  114  N.  Car.  823, 
824;  People  v.  Blanchard,  90  N.  Y. 
314,  325;  Allen  v.  State,  16  Tex.  App. 
150,  151 ;  Johnson  v.  State,  41  Tex.  65, 
67;  State  v.   Haines,  23  S.  Car.  170, 


173;  Canter  v.  State,  7  Lea   (Tenn. 
549,  351 ;  State  v.  Petty,  119  Mo.  425 
State    v.    Stanley,  64   Me.    157,    159 
Com.   v.   Jackson,  132  Mass.  16,  17 
State  v.  Moore,  111  N.  Car.  667,  673 
State  v.  King  (N.  H.,  1896),  34  Atl. 
Rep.  461.    The  evidence  to  prove  the 
truth  or  falsity  of  the  representations 
will   vary  according  to  their  nature. 
The  evidence  must  be  relevant  to  the 
specific  facts  contained  in  the  repre- 
sentations.     Thus,    if  the   statement 
upon    the    strength   of    which   goods 
were  sold  on  credit  was  that  the  ac- 
cused was  the  owner  of  a  lucrative 
business  and  had  a  substantial  bank 
account,  it  will  not  be  permissible  to 
prove  in  his  defense  that  he  was  the 
owner    of    considerable    real    estate. 
Such  evidence,  however,  would  be  ad- 
missible   where    his    statement    was 
merely  that  he  was  a  man  of  wealth. 
Carnell  v.  State  (Md.,  1897),  36  Atl. 
Rep.  117. 


504  CRIMINAL  EVIDENCE.  §  440 

§  440.    The  pretenses  must  have  been  calculated  to  deceive. 

— Not  only  must  the  pretenses  be  proved  to  have  been  false, 
but  it  must  also  be  shown  that  they  were  such  as  were  calcu- 
lated to  deceive  a  person  of  ordinary  caution  and  intelligence.1 
Hence  evidence  is  always  admissible  to  show  that  the  person 
who  was  defrauded  could  have  ascertained  the  truth  or  falsity 
of  the  statements  of  the  accused.2  Whether  the  representations 
were  calculated  to  deceive,  whether  the  owner  relied  upon  them 
as  the  main  inducement,  and  whether  they  were  known  to  be 
false,  by  the  accused,  are  questions  for  the  jury.  In  determin- 
ing them  the  jurors  must  consider  all  the  circumstances  of  the 
case,  such  as  the  ages  of  the  parties,  their  experience  and  knowl- 
edge of  the  world,  the  customs  of  the  business  or  profession  in 
which  they  are  engaged,  and  their  several  means  of  acquiring 
knowledge.3 

§441.  The  value  of  the  property  obtained. — It  must  be 
proved,  beyond  a  reasonable  doubt,  that  the  property  which 
was  obtained  by  means  of  the  false  representations  had  some 
value;4  and  that  the  representations  operated  to  prejudice  or 
injure  the  person  to  whom  they  were  made.5 

§  442.  Belief  in  false  representations. — The  prosecuting 
witness  may  testify  that  he  believed  in  the   false  pretenses.6 


1  Higler  v.  People,  44  Mich.  299,  303 
Com.  v.  Moore,  99  Pa.  St.  570 ;  Scott  v 
People,  62  Barb.  (N.  Y.)  62,  75-81 
Shaffer  v.  State,  82  Ind.  221,  224,  225 
State  v.  Burnett,  119  Ind.  392,  393 
Com.  v.  Grady,  13  Bush  (Ky.)  285 
286;  Thomas  v.  People,  113  111.531 
533,  537;  Delaney  v.  State,  7  Baxt 
(Tenn.)  28,  30 ;  Miller  v.  State,  73  Ind 
88,   91;    McCorkle   v.    State,    1   Cold 


436,  449;  People  v.  Dimick,  41  Hun 
(N.  Y.)  616;  State  v.  Jones,  70  N.  Car. 
75,  77;  McKee  v.  State,  111  Ind.  378, 
381 ;  Shaffer  v.  State,  100  Ind.  365,  368. 

3  See,  also,  Com.  v.  Grady,  13  Bush 
(Ky.)  285,  286;  Winslow  v.  State,  97 
Ala.  68 ;  Woodbury  v.  State,  69  Ala. 
242. 

4  State  v.  Lewis,  26  Kan.  123,  129; 
State  v.  Schaeffer,  89  Mo.   271,   278; 


(Tenn.)  333;  People  v.  Cook,  41  Hun  Rosales  v.  State,  22  Tex.   App.   673, 

(N.   Y.)    67,   69;   State   v.   Dehart,  6  675;   Moore  v.  Com.,  8  Pa.  St.   260; 

Baxt.    (Tenn.)    222,   224;    Watson    v.  Morgan  v.  State,  42  Ark.  131,  140. 

People,   87   N.   Y.  561,  565;  Com.  -v.  5People    v.    Galloway,    17     Wend. 

Haughey,  3  Mete.  (Ky.)  223.  (N.  Y.)   540;  People  v.  Cook,  41  Hun 

2  People  v.    Henssler,  48  Mich   49;  (N.  Y.)  67,  70. 

Wagoner  v.   State,  90  Ind.  504,  507;  6  People  v.  Herrick,  13  Wend.  (N.Y.) 

People  v.  Oyer  &  Terminer,  83  N.  Y.  87,  91;  In  re  Snyder,  17  Kan.  542,  553. 


§  443       FORGERY,  COUNTERFEITING  AND  FALSE  PRETENSES.         505 

The  evidence  must  show  beyond  a  reasonable  doubt  that  lie 
believed  that  the  representations  were  true  and  that,  relying 
and  acting  upon  them,  he  parted  with  his  property  upon  faith 
in  them.1  But  they  need  not  be  proved  to  have  been  the  sole, 
exclusive  and  decisive  cause  thereof.  He  may  have  been  in- 
fluenced by  considerations  of  friendship,  or  the  desire  of  gain, 
and  whether  he  was  so  influenced,  and  by  what  and  to  what 
extent,  are  questions  for  the  jury.2  It  is  a  false  pretense  under 
the  statute  for  the  accused  to  represent  himself  or  his  firm  to 
be  in  a  sound  pecuniary  condition,  or  worth  so  much,  or  to 
have  a  certain  sum  of  money  in  his  or  their  hands  or  in  the 
bank,  knowing  these  assertions  to  be  false.3 

§  443.  Evidence  of  the  pecuniary  condition  of  the  accused 
at  the  date  of  making  the  pretenses. — The  rule  that  the  pecun- 
iary condition  of  the  accused  is  irrelevant  is  subject  to  an 
exception  in  the  case  of  the  crime  of  false  representation. 
That  a  man  is  destitute  or  embarrassed  with  debt  does  not 
justify  an  inference  that  he  will  forge  or  steal;  and  evidence 
that  the  defendant  is  very  poor  should  be  rejected  in  a  prose- 
cution for  larceny  or  forgery.  But  where  one  person  procures 
the  property  of  another  because  of  the  confidence  the  owner 
has  in  his  financial  responsibility  and  intention  to  pay,  the 
fact  that  the  person  obtaining  the  goods  was  insolvent,  and 

'Trogdon  v.  Com.,  31  Gratt,   (Va.)  14  111.  348;  Britt  v.  State,  9  Humph. 

862,   884;   Reg.  v.  Mills,  7  Cox  C.  C.  (Tenn.)  30;  Fooks  v.  State,  65  Iowa 

263.     See,  also,  cases  in  next  note.  196;  In  re  Snyder,  17  Kan.  542;  State 

2  State  v.  Thatcher,  35  N.  J.  L.  445,  r.  Tessier,  32  La.  An.  1227;  Smith  v. 

449;   Therasson    v.   People,  20    Hun  State,  55  Miss.  513;  People  v.  Gihbs, 

(N.  Y.)  55,  67 ;  Van  Buren  v.  People,  7  98  Cal.  661,  663 ;  Donohoe  v.  State,  59 

Colo.  App.  136,  42  Pac.  Rep.  599 ;  Peo-  Ark.  375;   State  v.  Palmer,  50  Kan. 

pie  v.  Haynes,  14  Wend.  (N.  Y.)  546-  318. 

555  ;  People  r.  Baker,  96  N.Y.  340, 348 ;  s  Com.  v.  Schwartz,  92  Ky .  510,  515 ; 

Berry  v.  State,  97  Ga.  202,  23  S.  E.  Rothschild  v.   State,  13  Lea  (Tenn.) 

Rep.  833;  Skiff  ».  People,  2  Park.  Cr.  294,300-302;  Com.  v.  Drew,  153  Mass. 

Rep.  139;  Stater.  Williams,  103  Ind.  588,  595;  State  v.  Neimeier,  66  Iowa 

235,  237;   Woodbury  v.  State,  69  Ala.  634,637;   Higler  r.  People,  44  Mich. 

242,  246;   Wax  v.  State,  43  Neb.  18;  299,  303;  Cora.  o.  Wallace,  114  Pa.  St. 

State  v.  Dunlap,  24  Me.  77;   Com.  v.  405,  411 ;  Reg.  v.  Hovvarth,  11  Cox  C. 

Stevenson,  127  Mass.  446 ;  Fay  t>,  Com  ,  C.  588 ;  State  v.  Pryor,  30  Ind.  350,  351 ; 

28  Gratt.  (Va.)  912;  Cowen  v.  People,  Hathcock  i\  State,  88  Ga.  91. 


506  CRIMINAL  EVIDENCE.  §  443 

that  he  knew  it,  would  indicate  very  strongly  that  he  intended 
to  deprive  the  owner  of  his  property  without  paying  for  it,  and 
with  an  intention  to  defraud.  Hence,  evidence  tending  to 
show  the  solvency  or  insolvency  of  the  accused,1  or  of  some 
other  person,2  upon  whose  credit  property  is  procured,  is  rele- 
vant to  prove  that  he  made  the  statements  in  good  faith,  or  the 
reverse.3 

If  the  accused  refers  the  owner  of  the  property  to  a  third 
person  for  information,  who,  on  being  questioned,  and  while 
the  transaction  is  pending,  makes  a  statement,  upon  faith  in 
which  the  owner  acts,  the  statement  is  received  as  the  state- 
ment of  the  accused.4  Where  the  representations  of  financial 
ability  made  by  the  accused  were  alleged  to  be  false,  his  sub- 
sequent declarations  that  he  was  too  poor  to  retain  counsel  are 
relevant.5  But  the  admissions  of  the  accused,  made  upon  an 
examination  in  proceedings  supplementary  to  execution,  are 
not  receivable  where  the  statute  expressly  provides  that  such 
admissions  can  not  be  used  against  him  upon  a  criminal  prose- 
cution.6 The  insolvency  of  the  defendant  may  be  proved  by 
any  witness  having  a  competent  knowledge  of  his  financial 
condition.7 

1  State  v.  Hill,  72  Me.  238,  242.  the  law  presumes  he  intended."  Com. 

2  Where  a  person  was  defrauded  by  v.  Jeffries,  7  Allen  (Mass.)  548,  569; 
a  false  statement  as  to  which  of  two  Com.  v.  Drew,  153  Mass.  588,  595. 
persons  of  the  same  name  was  the  Evidence  that  the  accused  mortgaged 
maker  of  a  note,  evidence  of  the  fi-  all  his  property,  including  the  goods 
nancial  standing  of  the  alleged  maker,  obtained,  three  days  thereafter,  is 
and  of  the  irresponsibility  of  the  oth-  relevant.  State  v.  Call,  48  N.  H.  126, 
er,  is  admissible  to  show  intent.  Peo-  131.  See,  also,  State  v.  Long,  103  Ind. 
pie  v.  Cook,  41  Hun  (N.  Y.)  67,  71.  481,  484. 

3  Reg.  v.  Howarth,  11  Cox  C.  C.  588,  *  Todd  v.  State,  31  Ind.  514, 520.  Cf. 
592;  Wood  v.  People,  53  N.  Y.  511:  State  v.  McCormick,  57  Kan.  440,  46 

jBrown  v.  State  (Tex.,  1897),  38  S.  W.  Pac.  Rep.  777. 

fRep.  1008.     "Evidence  of  the  pecu-  5  State  v.  Fooks,  65  Iowa  196,  198. 

niary  condition  of  the  accused  is  not  If  the  indictment  does  not  negative 

offered  to  show  that  he  was  under  a  the  representations  of  solvency,  evi- 

peculiar  temptation  to  commit  the  of-  dence  of  insolvency  is  not  admissible, 

fense,  or  was  more  likely  to  cheat  and  State  v.  Long,  103  Ind.  481. 

defraud  because  he  was  in    embar-  6  Barber  v.  People,  17  Hun  (N.  Y.) 

rassed  circumstances,  but  for  the  pur-  366,  368. 

pose  of  showing  the  natural  and  nee-  7Com.  v.  Jeffries,  7  Allen  (Mass.) 

essary  consequences  of  his  act  which  548.    The  notes  of  the  accused  are  rel- 


§  444       FORGERY,  COUNTERFEITING  AND  FALSE   PRETENSES.         507 

§  444.    The  false  pretenses  not  necessarily  verbal. — It  is 

never  necessary  for  the  prosecution  to  prove  that  the  false 
pretenses  were  made  by,  or  contained  in,  verbal  statements  or 
communications,  oral  or  written.  Actions  often  speak  louder 
than  words.  The  language  of  the  accused  is  always  relevant 
in  evidence;  but  evidence  of  his  actions,  unaccompanied  by 
language,  may  also  be  received  and  the  false  representations 
may  be  implied  by  the  jury  from  evidence  of  such  actions. 

If  the  ideas  properly  and  naturally  conveyed  by  the  actions 
of  the  accused  produce  a  false  impression  upon  the  mind  of 
the  owner  of  the  property  which  is  obtained,  and  it  also  ap- 
pears from  all  the  facts  in  evidence  that  the  accused  knew  and 
intended  that  they  should  produce  such  a  false  impression,  an 
allegation  of  false  pretenses  is  sustained.1  Thus  it  has  repeat- 
edly been  held  that  the  action  of  the  accused  in  drawing  a 
check  upon  a  bank  in  which  he  has  no  funds,  and  which  he 
therefore  knows  will  not  be  honored  on  presentation,  and  pass- 
ing the  same,  is  by  implication  a  false  representation  that  he 
has  money  in  the  bank  on  which  the  check  is  drawn.2 

§  445.  Proving  the  venue. — The  false  representation  may  be 
proved  to  have  been  made  in  one  place  and  the  property  may 
have  been  obtained  in  another.  This  occurs  where  the  ac- 
cused has  written  and  mailed  a  letter  to  the  owner  of  the 
money  or  goods,  who  resides  or  does  business  in  a  distant  city, 
and  the  property  is  sent  to  him  upon  faith  in  the  false  repre- 
sentations contained  in  the  letter.  The  place  in  which  the 
owner  parts  with  his  property  determines  the  venue  of  the 
crime.     Hence  evidence  to  prove  where  the  false  representa- 

evant  to  show  what  he  owes.     Hath-  218,  219;  Reg.  v.  Radcliff,  12  Cox  C. 

cock  v.  State,  88  Ga.  91.  C.  474.     Contra,  Reg.  v.  Partridge,  6 

^lusgrave  v.  State,  133  Ind.  297,  Cox   C.  C.  182,  186;   Brown  v.   State 

306;  Com.  v.  Murphy,  96  Ky.  28,  27  (Tex.,  1897),  38  8.  W.  Rep.  1008.   The 

S.  W.  Rep. 859;  Brown  v.  State  (Tex.,  fact  that  a  person,  not  a  member  of 

1897),  38  S.  W.  Rep.  1008.  the  university,  wentto  a  shop  wearing 

EPeople  v.  Donaldson,  70  Cal.  116,  a  cap  and  gown  and  obtained  goods  is 

118;  Com.  v.  Drew,  19  Pick.  (Mass.)  sufficient  evidence  of  false  pretenses 

179;   Rex  v.  Jackson,  3  Campb.   370,  though  he  said  nothing.     Rex  v.  Bar- 

371 ;  Foote  v.  People,  17  Hun  (N.  Y.)  nard,  7  C.  &  P.  784,  785. 


508 


CRIMINAL    EVIDENCE. 


§  445 


tions  were  made  is  immaterial.  But  it  must  aiways  be  proved 
where  the  false  statements  were  acted  upon  by  the  owner  and 
where  the  money  or  goods  were  obtained.1 


1  State  v.  Shaeffer,  89  Mo.  271,  278; 
State  v.  House,  55  Iowa  466,  472 ;  Nor- 
ris  v.  State,  25  Ohio  St.  217;  Com.  v. 
Van  Tuyl,  1  Met.  (Ky.)  1,  4;  People 
v.  Adams,  3  Denio  190;  Com.  v.  Kar- 
pouski,  15  Pa.  Co.  Ct.  Rep.  280.  A 
letter  may  be  relevant  evidence  aside 
from  the  writing  contained  in  it  to 


show  the  representations  made  and 
the  place  of  their  making.  The 
printed  matter  at  the  head  of  the 
letter  may  indicate  the  false  character 
which  the  accused  has  assumed  in  or- 
der to  effect  his  criminal  designs  and 
purposes.  Taylor  v.  Com.,  94  Ky. 
281,  284. 


CHAPTER  XXX. 


OFFENSES    AGAINST    PUBLIC    JUSTICE. 


§  446.   Obstructing  justice  and  resist-     §  458. 
ing  arrest  — Proof  of  official 
character  of  officer  resisted — 
Validity  of  his  appointment. 

447.  Intention  to  obstruct  justice —        459. 

Evidence  of    threats    or   to 

show  validity  of  warrant.  460. 

448.  Preventing  attendance  of  wit- 

nesses. 

449.  False  swearing. 

450.  Embracery — Evidence  re-        461. 

quired. 

451.  Bribery  defined — Evidence  of 

circumstances  to  prove  cor-        462. 
rupt  intention. 

452.  Judicial  notice  of  official  char-        463. 

acter  and  acts. 

453.  Necessity  for  reliance  on  evi-        464. 

dence  of  accomplices  in  the        465. 
bribery — Compulsory  exami- 
nation of  accomplice.  466. 

454.  Proving  other  acts  of  bribery. 

455.  Bribery  of  voters — Judicial  no-        467. 

tice  of  elections.  468. 

456.  Extortion — Intent  and   guilty 

knowledge  —  Evidence     to 

prove  ignorance  or  mistake        469. 

of  law  or  fact.  470. 

457.  Value  of  the  thing  extorted — 

Burden  of  proving  exception 
to  statute. 


Compounding  offenses — The 
intent  to  screen  the  offender 
— Mode  of  proving  that  a 
crime  was  committed. 

Contempt  defined  —  Inherent 
judicial  power  to  punish. 

Direct  and  constructive  con- 
tempt distinguished — Court 
may  take  notice  of  without 
evidence. 

Procedure  in  receiving  evi- 
dence of  constructive  con- 
tempt. 

Escape — Distinct  from  prison 
breach. 

Intention  in  permitting  escape 
— Negligence  of  officer. 

Aiding  prisoner  to  escape. 

Illegality  of  arrest,  when  rele- 
vant. 

Perjury — The  intent  to  swear 

to  what  is  false. 
Materiality  of  the  testimony. 

Number  of  witnesses  required 
and  corroboration  of  single 
witness  to  prove  falsity. 

Falsity  of  the  testimony. 

Proof  of  the  testimony  alleged 
to  be  false. 


§  446.  Obstructing  justice  and  resisting  arrest — Proof  of 
official  character  of  officer  resisted — Validity  of  his  appoint- 
ment.— Though  in  civil  cases  the  courts  will  judicially  notice 

(509) 


510 


CRIMINAL    EVIDENCE. 


§447 


that  certain  persons  are  officers,1  on  a  trial  for  resisting  an 
officer  it  must  be  shown  that  the  person  resisted  was  an  officer 
and  that  the  accused  was  aware  of  his  official  character.2  These 
facts  can  not  be  presumed.8  The  officer  who  issued,4  or  served 
the  writ,5  may  testify  orally  that  he  was  an  officer  and  acted  as 
such.  It  is  enough  if  he  was  an  officer  de  facto*  and  evidence 
to  prove  the  invalidity  of  his  appointment  is  usually  inadmis- 
sible.7 If  the  officer  is  alleged  with  unnecessary  particularity 
"to  have  been  legally  appointed  and  duly  qualified,"  the  court 
may  require  his  appointment  to  be  proved.8 

§  447.  Intention  to  obstruct  justice — Evidence  of  threats, 
or  to  show  invalidity  of  warrant. — The  intention  to  obstruct 
the  officer  may  be  inferred  from  the  language  of  the  accused. 


^nderhill  on  Ev.,  §  240. 

2  Pettibone  v.  United  States,  148  TJ. 
S.  197,  205;  Merritt  v.  State  (Miss., 
1889),  5  So.  Rep.  386;  Rex  v.  Osmer, 
5  East  304 ;  State  v.  Carpenter,  54  Vt. 
551 ;  State  v.  Maloney,  12  R.  I.  251 ; 
State  v.  Downer,  8  Vt.  424,  429;  Com. 
v.  Israel,  4  Leigh  (Va.)  675;  Yates  v. 
People,  32  N.  Y.  509;  Com.  v.  Kirby, 
2Cush.  577;  State  v.  Hilton,  26  Mo. 
199 ;  State  v.  Smith,  1 1  Ore.  205 ;  Horan 
v.  State,  7  Tex.  App.  183 ;  Duncan  v. 
State,  7  Humph.  148 ;  State  v.  Beasom, 
40  N.  H.  367.  Cf.  Putnam  v.  State,  49 
Ark.  449,  453;  State  v.  Pickett,  118  N. 
Car.  1231,  24  S.  E.  Rep.  850. 

3  State  v.  Downer,  8  Vt.  424,  429; 
State  v.  Carpenter,  54  Vt.  551,  553.  It 
may,  and  perhaps  must,  be  proved 
that  the  officer  stated  he  came  to  ar- 
rest the  defendant,  or  that  he  read  a 
warrant  to  him,  or  stated  he  had  a 
warrant  for  him.  These  facts  are 
essential,  though  if  the  accused  began 
his  resistance  on  seeing  the  officer  it 
is  not  necessary  to  prove  the  warrant 
was  read.  Com.  v.  Cooley,  6  Gray 
(Mass.)  350,  356.     Cf.  State  v.  Smith, 


11  Ore.  205,  207 ;  State  v.  Maloney,  12 
R.  I.  251,  254. 

4  Oliver  v.  State,  17  Ark.  508,  510. 

5  Com.  v.  McCue,  16  Gray  226,  227 ; 
State  v.  Zeibart,  40  Iowa  169,  175. 

6  Floyd  v.  State,  79  Ala.  39,  42; 
Cockerham  v.  State  (Miss.,  1896),  19 
So.  Rep.  195;  State  v.  Bates,  23  Iowa 
96,  99.  To  require  every  officer  to 
establish  the  validity  of  his  appoint- 
ment in  collateral  proceedings  would 
be  intolerable  and  a  dangerous  ob- 
struction of  justice.  Heath  v.  State, 
36  Ala.  273,  276. 

7  Robinson  v.  State,  82  Ga.  535,  546; 
Com.  v.  Kirby,  2  Cush.  (Mass.)  577, 
581 ;  State  v.  Armistead,  106  N.  Car. 
639,  642 ;  People  v.  Hopson,  1  Den.  574. 
Contra,  Creighton  v.  Com.,  83  Ky.  142, 
147.  It  seems,  however,  that  the  va- 
lidity of  a  written  warrant  of  appoint- 
ment may  be  inquired  into  and  if 
invalid,  it  is  inadmissible.  United 
States  v.  Phelps,  4  Day  (Conn.)  469, 
470. 

8  State  v.  Sherburne,  59  N.  H.  99; 
State  v.  Copp,  15  N.  H.  212. 


§  448  OFFENSES   AGAINST    PUBLIC   JUSTICE.  511 

Threats  and  violent  epithets  against  the  officer  are  admissible,1 
nor  is  it  necessary  to  prove  that  the  officer  was  beaten  or  as- 
saulted.2 Evidence  that  the  obstruction  was  unsuccessful,3 
or  that  the  person  whose  arrest  the  accused  tried  to  prevent 
was  not  in  fact  guilty,4  or  that  property  which  the  officer  at- 
tached, believing  it  belonged  to  the  defendant,  did  not  belong 
to  him,5  has  been  held  not  relevant. 

The  validity  of  the  warrant  under  which  an  arrest  was  at- 
tempted will  be  presumed  until  the  contrary  is  shown.6  The 
burden  to  prove  its  invalidity  is  on  the  defendant.7  The  illegal- 
ity or  invalidity  of  the  warrant  is  always  relevant.  Any  person 
may  resist  arrest,  even  forcibly,  under  an  illegal  warrant  and 
may  show  its  invalidity  on  his  trial  by  parol  evidence.8 

The  defendant  can  not  be  permitted  to  prove  that,  after 
after  having  resisted  arrest,  he  offered  to  surrender  himself 
and  to  go  before  some  other  justice  if  his  attorney  should  ad- 
vise him  the  warrant  was  valid.9 

§  448.  Preventing  attendance  of  witnesses. — A  willful  and 
corrupt  attempt  to  prevent  the  attendance  of  a  witness  before 
a  lawful  tribunal  is  an  offense  at  common  law.  The  essence  of 
the  offense  is  the  attempt  to  interfere  with  and  obstruct  the  ad- 
ministration of  justice.10     It  need  not  be  proved  that  the  wit- 

1  State  v.  Morrison,  46  Kan.  679,  684  7  State  v.  Freeman,  8  Iowa  428 ;  Ker- 

-689;  State  v.  Seery  (Iowa,  1896),  64  nan  v.  State,  11  Ind.  471,  472. 

N.  W.  Rep.  631.  8  State  v.  Wimbush,  9  S.  Car.  309, 

*  Wood  worth  v.  State,  26  Ohio  St.  317;  State  v.  Hailey,  2  Strob.  73;  Un- 

196,  200.     But  evidence  showing  only  derhill  on  Ev.,  §  208.     It  is  sufficient 

an  effort  to  elude  arrest  will  not  sus-  to  charge  resistance  or  obstruction  in 

tain  a  charge  of  resisting  an  officer,  the  language  of  the  statute.     The  par 

State  v.  Welch,  37  Wis.  196,  202,  203;  ticular  manner  is  matter  of  evidence 

Clay  v.  State  (Miss.,  1897),  22  So.  Rep.  Oliver   v.    State,   17   Ark.    508,   509 

62.  United   States  v.   Bachelder,  2  Gall 

3  State  v.  Gilbert,  21  Ind.  474.  14;  State  v.  Copp,  15  N.  H.  212,  215 

4  Com.  v.  Tracy,  5  Mete.   (Mass.)  Contra,  Horan  v.  State,  7  Tex.  App 
536,  553 ;  State  v.  Bates,  23  Iowa  96,  183,  191 ;  Lamberton  v.  State,  11  Ohio 
98 ;  State  v.  Garrett,  80  Iowa  589,  590.  282. 

5  State   v.  Downer,  8  Vt.  424,  428;  9  King  v.  State,  89  Ala.  43,  46. 
State  v.  Fifield,  18  N.  H.  34,  38.  10  State  v.  Holt,  84  Me.  509,  24  Atl. 

6UnderhillonEv.,  §231.  Rep.  951;  Perrow  v.  State,  67  Miss. 

365,  368,  7  So.  Rep.  349. 


512  CRIMINAL  EVIDENCE.  §  449 

ness  was  under  a  subpoena,1  that  he  was  called  in  behalf  of 
either  party,  or  that  his  evidence  was  material.2 

§  449.  False  swearing. — This  crime  consists  in  testifying 
knowingly  and  falsely  under  oath  in  a  non-judicial  proceed- 
ing, as,  for  example,  on  applying  for  a  marriage  license,  or  on  reg- 
istration as  a  voter.  The  language  used  by  the  accused  and  his 
knowledge  of  its  falsity  must  be  proved.3  If  the  accused  is 
alleged  to  have  sworn  falsely  to  several  facts,  proof  that  he 
swore  falsely  to  one  is  insufficient.4  A  conviction  will  not  be 
sustained  unless  founded  on  the  evidence  of  two  credible  wit- 
nesses, or  on  that  of  one  such  witness  corroborated  strongly  by 
circumstances  pointing  to  the  falsity  of  the  statements.5 

False  swearing  is  a  statutory  offense,  and  is  distinct  from 
perjury  at  common  law.  Neither  can  be  sustained  by  proving 
the  other,  nor  can  a  statute  requiring  a  grand  juror  to  dis- 
close the  testimony  of  a  witness  on  the  trial  of  the  latter  for 
perjury  before  the  grand  jury  be  construed  to  apply  to  his  in- 
dictment for  false  swearing  before  them.6 

§  450.  Embracery — Evidence  required. — This  crime,  which 
may  be  regarded  as  a  particular  form  of  bribery,  is  denned  as 
an  attempt  to  influence  a  juror  or  jurors  corruptly  by  gifts, 
persuasions  or  threats,  or  by  any  other  means  (except  the  evi- 
dence or  argument  submitted  in  open  court),  by  a  party  or  by 
a  stranger,  whether  the  verdict  be  given  or  not  and  whether 
the  verdict,  if  given,  be  true  or  false.7  Proof  of  giving  money 
to  a  person  to  be  distributed  among  jurors  is  sufficient,  though 
the  money  never  reached  them.     A  mere  attempt  to  bribe  a 


1  State  v.  Keyes,  8  Vt.  57,  66,  67 ;  165 ;  Aguierre  v.  State,  31  Tex.  Cr. 
State  v.  Horner  (Del.,  1893),  26  Atl.  Rep.  519,  520;  Reg.  v.  Browning,  3 
Rep.  73,  74.  Cox  C.  C.  437,  438.     See  post,  §  468. 

2  Com.  v.  Reynolds,  14  Gray  87,  89.  6Com.  v.  Scowden,  92  Ky.  120,  122. 
See  post,  §  470.  See  ante,  §§  192-194. 

3  Aguierre  v.  State,  31  Tex.  Cr.  Rep.  7 1  Russell  on  Cr.  182,  4  Bla.  Com. 
519.  140;   Doan's  Case,  5  Pa.  Dist.  Rep. 

4  Reg.  v.  Chapman,  1  Den.  C.  C.  432.  211. 

5  State  v.  Miller,  44  Mo.  App.  159, 


§  451  OFFENSES    AGAINST    PUBLIC    JUSTICE.  513 

jury  is  embracery,  though  it  may  for  any  reason  have  been  un- 
successful.1 

The  presence  of  a  criminal  intention  to  corruptly  influence 
the  juror  must  be  shown.  This  is  now  doubtless  the  correct 
rule  in  this  country,  though  the  earlier  common  law,  because 
of  its  intense  abhorrence  of  any  act  savoring  of  maintenance, 
punished  as  embracery  a  mere  exhortation  on  the  part  of  a 
stranger  that  a  juror  should  appear  and  act  according  to  his 
conscience.2 

§  451.  Bribery  defined — Evidence  of  circumstances  to  prove 
corrupt  intention. — The  crime  may  be  defined  as  an  attempt, 
whether  successful  or  the  reverse,  to  influence  an  officer  in  his 
official  conduct,  either  in  the  executive,  legislative  or  judicial 
department  of  the  government,  by  the  offer  of  a  reward  or  pe- 
cuniary consideration.3  The  scope  of  this  definition  is  as  broad  as 
the  duty  of  the  officer  who  accepts  a  bribe.  If  the  object  of  the 
offering  is  to  influence  the  officer  in  any  matter  which  may 
come  before  him,  that  is,  which  is  within  his  official  juris- 
diction and  duty,  it  is  immaterial  that  he  fails,  or  has  no 
opportunity  or  power  to  carry  out  the  illegal  agreement.4  On 
the  trial  of  the  person  giving  the  bribe,  corrupt  intent  on  the 
part  of  the  recipient  need  not  be  proved.     If  the  briber  parted 

1  State  v.  Williams  (Mo.,  1897),  38  Walsh  v.  People,   65  111.  58,  59,  61; 

S.  W.  Rep.  75;  State  v.  Sales,  2  Nev.  Rex  v.  Plympton,  2  L.  Raym.  1377; 

268;  Rose.  Cr.  Ev.  721.   Evidence  that  State  v.  Ellis,  33  N.  J.  L.  102;  People 

defendant  has  solicited  money  to  use  v.  Ah  Fook,  62  Cal.  493,  495;  Barefield 

in  corruptly  influencing  the  jurors  is  v.   State,    14    Ala.   603,   607;  State  v. 

also  sufficient.  Miles,  89  Me.  142,  36  Atl.  Rep.  70.    It 

21  Russ.  on  Cr.  183.  It  is  not  essen-  is  not  necessary  to  prove  the  money 

tial  to  prove  that  the  person  to  whom  was  either  actually  tendered  or  pro- 

the  hribe  was  offered  had  been  drawn  duced.     Jackson  v.  State,  43  Tex.  421, 

as  a  juror,  if  it  appears  that  he  was  424.     See  Glover  v.   State,   109   Ind. 

summoned  as  such.     And  the  testi-  391,  401 ;  State  ?>.  Geyer,  3  Ohio  N.  P. 

mony  of  other  jurors  that  the  defend-  242. 

ant  tried  to  bribe  them  is  admissible.  4  Ruffin  v.  State  (Tex.,  1897),  38  S.W. 

State  v.  Williams  (Mo.,  1897),  38  S.  Rep.  169;    Newman  v.  People  (Colo.. 

W.  Rep.  75.  1897),47  Pac.  Rep.278 ;  People  r.  Mark- 

sThe  offer  of  a  bribe,  though  unac-  ham,  64  Cal.  157,  161.     Cf.  Messer  i. 

cepted,  is    bribery   at  common   law.  State  (Tex.,  1897),  40  S.  W.  Rep.  488, 
33— Cr.  Ev. 


514  CRIMINAL  EVIDENCE.  §  452 

with  the  bribe  with  an  intent  to  bribe,  the  offense  is  proved, 
though  the  officer  did  not  know  what  it  was,  or  its  purpose, 
and  kept  it  solely  for  the  purpose  of  public  justice.1  The  cor- 
rupt intention  of  the  officer  receiving,2  or  of  the  person  offering 
a  bribe,  must  be  proved,  when  necessary,  beyond  a  reasonable 
doubt.3  The  briber's  intention  to  influence  can  be  inferred  only 
from  his  language  where  no  money  or  other  valuable  thing  is 
produced.  He  may  show  his  intoxication  at  the  time  to  rebut 
the  inference  of  corrupt  intent  by  proving  he  did  not  know 
what  he  was  saying.  But  the  witness  will  not  be  permitted 
to  state  that  the  accused  was  so  drunk  as  not  to  know  what  he 
was  doing.4 

§452.    Judicial  notice  of  official  character  and  acts. — The 

courts  will  take  notice  that  the  person  who  was  bribed  was  a 
public  officer,5  of  the  date  of  his  appointment  or  accession,6  of 
his  public  acts,7  and  of  the  date  when  his  term  expires  by 
death  or  limitation.8  It  suffices  if  the  officer  is  an  officer  de 
facto.  The  regularity  and  validity  of  his  tenure  are  irrelevant. 
The  defendant  will  not  be  permitted  to  show  that  the  officer 
was  not  appointed  in  writing,  or  sworn,  or  that  he  was  other- 
wise unqualified  under  a  statute.9 

§  453.  Necessity  for  reliance  on  evidence  of  accomplices  in  the 
bribery — Compulsory  examination  of  accomplice. — As  soon  as 
the  crime  is  consummated  by  the  delivery  of  the  money  or  valu- 
able thing  by  the  briber  to  the  bribed,  the  latter  is  an  accomplice 

1Com.  v.  Murray,  135  Mass.  530,  7  State  v.  Gramelspacher,  126  Ind. 
532.  398,  403,  citing  eases;  Jones  v.  United 

2  State  v.  Pritchard,  107  N.  Car.  921,     States,  137  U.  S.  202. 

926.  8Doe  v.   Riley,   28   Ala.   164.    For 

3  White  v.  State,  103  Ala.  72, 16  So.  cml  cases  holding  that  the  courts 
Rep.  63,  67.  will  judicially   notice  official   names, 

4  White  v.  State,  supra;  ante,  §  166.  etc.,  see  Underhill  on  Bv.,  §244. 

5  Rath  v.  State  (Tex.,  1896),  33  S.  9Florez  v.  State,  11  Tex.  App.  102, 
W.  R.  226;  State  v.  McDonald,  106  104;  State  v.  Gardner  (Ohio,  1896),  42 
Ind.  233,  235.  N.  E.  Rep.  999;  Com.  v.  Saulsbury  152 

GHizer  v.  State,  12  Ind.  330,  334;  Pa.  St.  554,  558  (extortion).  See  ante, 
State  v.  Boyd,  34  Neb.  435,  437.  §§  446,  447. 


§  4.")  1  OFFENSES    AGAINST    PUBLIC    JUSTICE.  515 

of  the  former.1  The  voluntary  testimony  of  either  may  be  used 
against  the  other  separately  tried.2  It  is  sometimes  provided 
by  statute  that  an  accomplice  in  bribery  may  be  compelled  to 
testify  at  any  trial  or  investigation,  that  his  evidence  thus 
given  can  not  be  used  against  him,  and  that  he  shall  not  be 
liable  to  indictment  or  prosecution  for  the  bribery.8  Because 
of  the  secret  nature  of  the  crime,  and  the  necessity  that  there 
should  always  be  at  least  two  participants,  it  is  both  neces- 
sary and  customary  to  rel}r  largely  on  accomplice  evidence. 
When  an  accomplice  is  used  as  a  witness,  the  utmost  good 
faith  should  be  observed  in  dealing  with  him.  The  spirit  as 
well  as  the  letter  of  the  statute  should  be  regarded.4 

§  454.  Proving  other  acts  of  bribery. — The  giving  or  the  re- 
ceipt of  other  bribes,  remote  in  time,  differing  in  purpose  and  dis- 
tinct from  the  act  charged,  is  inadmissible.5  Where  defendant 
was  indicted  for  receiving  a  bribe  to  permit  gambling,  and  it 
was  agreed  that  other  bribes  should  be  paid  in  the  future, 
separate  acts  of  bribery  are  relevant  as  part  of  a  system  and 
to  show  the  intent,  purpose  and  understanding  with  which  the 
money  was  received.6 

§  455.    Bribery  of  voters — Judicial    notice   of  elections. — 

Bribery,  and  attempts  to  influence  voters  at  elections,  were  in 
England  indictable  at  common  law,7  and  this  rule  is  generally 
recognized  in  the  United  States.8     A  conviction  of  bribing  a 

'Ettffins.  State  (Tex.,  1897),  38  S.  4  People  v.  Spencer,  66  Hun  149, 151, 

W.  Rep.  169.     One  who  gives  money  21  N.  Y.  Supp.  33;    People  v.  Singer, 

to  a  person   who  solicits  a  brihe,  in-  18  Abb.  N.  Cas.  96;  People  v.  Clark, 

tending  to  denounce  him,  and  to  pro-  14   N.  Y.  Supp.   642 ;    Counselman  v. 

cure  his  arrest,  is  not  an  accomplice.  Hitchcock,  142  0".   S.  547;   Peoples. 

It  is  proper,  however,  to  subject  the  Clements,  5  N.  Y.  Cr.  Rep.  282,  298, 

decoy  to  a  rigid  cross-examination  as  300;  Com.  v   Bell,  145  Pa.  St.  374,  391. 

to  his   motive.     People  v.  Liphardt,  5  People  v.  Sharp,  107  N.Y.  427,  457- 

105   Mich.  80,  62  N.  W.   Rep.  1022;  463.    See  ante,  §87. 

Newman  v.  People  (Colo.,  1897),  47  6Guthrie  v.  State,  16  Neb.  667,  672. 

Pac.  Rep.  278.  See  ante,  §88,  et  seq. 

2  See  ante,  §  71,  et  seq.  7  Russell  on  Crimes,  154. 

3  Penn.  Const.,  §32,  Art.  Ill,  N.  Y.  8  State  v.  Jackson,  73  Me.  91,  94  (at- 
Penal  Code,  79.  tempt);    1  Bish.  Cr.  L.  355;   Com.  v. 


516  CRIMINAL  EVIDENCE.  §  456 

voter  has  been  sustained  on  proof  of  a  promise  to  pay  for  loss 
of  time,1  to  pay  the  traveling  expenses  of  the  voters,2  or  by 
showing  that  a  candidate  supplied  voters  with  refreshments,3 
or  that  he  publicly  declared  that  if  he  were  elected  he  was  will- 
ing to  perform  the  duties  of  the  office  for  a  smaller  compensa- 
tion than  was  allowed  by  law,4  or  promised  to  appoint  an  op- 
posing candidate  as  his  deputy  if  the  latter  would  withdraw 
from  the  contest/  But  a  conviction  for  receiving  a  bribe  to 
vote  for  a  particular  candidate  is  not  sustained  unless  the  state 
proves  that  the  vote  was  cast.  This  fact  must  not  be  left  to 
the  jury  to  infer  from  the  former  political  convictions  of  the 
accused.  Under  the  secret  ballot  it  is  extremely  difficult  for 
this  to  be  done,  unless  the  voter  shall  voluntarily  lift  the  veil 
of  secrecy.  No  one  can  examine  his  ballot,  or  testify  to  its 
contents,  unless  his  knowledge  was  acquired  from  the  voter 
himself.6  The  courts  will  take  judicial  notice  of  the  days  of 
holding  general  elections  and  of  the  officers  voted  for,7  that  an 
election  has  in  fact  been  held,8  the  whole  number  of  votes  cast 
and  the  result,9  together  with  the  fact  that  the  result  is  con- 
tested.10 

§  456.  Extortion — Intent  and  guilty  knowledge — Evidence 
to  prove  ignorance  or  mistake  of  law  and  fact. — Extortion  is 
an  unlawful  taking  by  an  officer,  under  color  of  his  office,  of 
money  or  other  valuable  thing  not  due  him,  or  more  than  is 
due  him,  or  before  it  is  due.11  Whether  a  corrupt  intention 
and  knowledge  are  always  essential  is  not  positively  decided. 

Hoxey,    16  Mass.  385;    Com.  v.  Mc-  6  Johnson  v.  Com.,   90   Ky.   53,  58. 

Hale,   97  Pa.  St.  397,  Albany  L.  J.,  Cf.  State  v.  Minnick,  15  Iowa  123, 127. 

Nov.  19, 1881.  'State  v.  Minnick,  15  Iowa  123. 

1  Simpson  v.  Yeend,  4  L.  R.  Q.  B.  8  Urmston  v.  State,  73  Ind.  175,  177. 

626.  9  Thomas  v.  Com.,  90  Va.  92,  17  S.  E. 

8Bayntun  v.  Cattle,  1  Mood.  &  R.  Rep.  788;   State  v.  Swift,  69  Ind.  505, 

265.  526,  527. 

3  Duke  v.  Asbee,  11  Ired.  (N.  Car.)  10  Lewis  v.  Bruton,  74  Ala.  317. 
112,  114,  115.  u  4  Bl.  Com.  141 ;  Com.  v.  Saulsbury, 

4  State  v.  Purdy,  36  Wis.  213,  216,  152  Pa.  St.  554,  559 ;  United  States  v. 
223;  State  v.  Dustin,  5  Ore.  375,  378.  Deaver,  14  Fed.  Rep.  595;  People  v. 

8  Lewis  Cr.  L.,  126.  McLaughlin,  2  App.  Div.  419;   Kirby 

v.  State,  57  N.  J.  L.  320. 


§  457  OFFKNSES    AGAINST    PUBLIC    JUSTICE.  517 

The  majority  of  the  cases  require  them  to  be  proved,  leaving 
their  existence  to  be  determined  by  the  jury,1  and  permit  the 
accused  officer  to  show  that  he  was  ignorant  of  the  law,  and 
thought  he  was  entitled  to  the  fee,  or  that  he  erred  in  comput- 
ing the  fees  due  him.  But  evidence  of  a  usage  among  officials 
to  take  the  illegal  fees,  or  of  the  construction  which  is  placed 
upon  the  statute  by  officers  generally  to  disprove  a  criminal  in- 
tent, has  been  rejected.2  But  some  authorities  hold  that  cor- 
rupt knowledge  or  intent  to  extort  is  not  essential,  and  where 
this  is  the  rule,  evidence  to  prove  official  ignorance  or  mistake 
is  inadmissible.3  This  lack  of  harmony  arises  from  a  failure 
to  distinguish  between  the  quality  and  character  of  an  act  done 
under  a  mistake  or  in  ignorance  of  fact,  and  an  act  arising 
from  a  mistake  or  ignorance  of  law.  The  rule  that  a  mistake, 
or  misapprehension  of  fact,  may  be  proved  to  negative  a  crimi- 
nal intent  is  broad  enough  to  include  and  exculpate  officials 
accused  of  extortion.  On  the  other  hand  the  maxim,  "igno- 
rance of  law  excuses  no  one,"  will  not  permit  an  officer  to  prove 
that  he  did  not  know  the  law,  and  hence  that  he  thought  he 
was  taking  legal  and  stautory  fees.4 

§  457.  Value  of  the  thing  extorted — Burden  of  proving  excep- 
tion to  statute. — It  is  absolutely  essential  to  a  conviction  to 

1  Com.  v.  Shed,  1  Mass.  227;  Cutter  office  is  of  the  essence  of  the  offense. 

v.  State,  7  Vroom  (36  N.  J.  L.)  125, 127 ;  It  must  be  proved  that  the  money  was 

Cleaveland  v.  State,  34  Ala.  254,  259;  taken  in  right  of  office,  and  that  the 

People  v.  Whaley,  6  Cowen  (N.  Y.)  person  paying  unwillingly  yielded  to 

661  ;    State  v.  Pritchard,  107  N.  Car.  official    authority.     Money    paid    for 

921,  927.  services  not  official,  or  to  an  officer  in 

2 Com.   v.  Dennie   (Mass.),  Thach.  his  private  capacity,  is  not  extorted. 

Cr.  Cas.  165.  Collier    v.    State,   55   Ala.    125,    128; 

3  United  States  v.  Harned.  43  Fed.  United  States  v.  Deaver,  14  Fed.  Rep. 
Rep.  376,  377;  Com.  v.  Bagley,  7 Pick.  595,  599;  State  v.  Pritchard,  107  N. 
(Mass.)  279,  281;  State  v.  Jones,  71  Car.  921,  927.  Evidence  of  other  ex- 
Miss.  872;  State  v.  Merritt,  5  Sneed  tortionate  acts  distinct  from  that  al- 
(Tenn.)  67,  69.  leged  is  not,  it  seems,  admissible  to 

4  People  v.  Monk,  8  Utah  35,  28  raise  a  presumption  of  criminal  in- 
Pac.  Rep.  1115,  1116;  Birney  v.  State,  tent.  Com.  v.  Saulsbury,  152  Pa.  St. 
8  01  io  230.     A  taking  under  color  of  554,  558.     See  ante,  §  87,  et  seq. 


518  CRIMINAL  EVIDENCE.  §  458 

prove  that  the  thing  extorted  had  some  value,1  and  that  the 
money  or  thing  taken  was  unwillingly  paid  or  given.2 

An  allegation  of  taking  higher  fees  than  the  officer  is  en- 
titled to  may  be  sustained  by  evidence  which  leaves  the  exact 
amount  in  doubt.3  The  burden  of  proof  is  on  a  defendant  who 
claims  he  has  a  legal  right  to  the  fee  under  an  exception  in  a 
statute.4  If  an  officer  is  indicted  for  extortion  for  receiving  a 
fee  for  the  pretended  service  of  a  writ  the  truth  of  his  return, 
showing  service,  is  directly  in  issue.  While  the  return  is 
'prima  facie  evidence  of  the  service,  under  the  presumption  that 
the  officer  did  his  duty,  it  is  never  conclusive.5 

§  458.  Compounding  offenses — The  intent  to  screen  the  of- 
fender— Mode  of  proving  that  a  crime  was  committed. — Com- 
pounding a  crime  consists  in  taking  goods  or  other  amends  on 
an  agreement  not  to  prosecute.  Compounding  a  felony  is,  at 
common  law,  equally  criminal  with  the  felony,  and  is  also  a 
misdemeanor  against  public  justice.6  The  material  facts  are 
knowledge  of  the  actual  commission  of  a  crime,  the  taking  of 
the  money  or  property  of  another  and  the  intent  to  conceal  or 
to  compound  the  felony.7 

The  gist  or  essence  of  this  crime  is  the  intention  to  screen  an 
offender  and  to  smother  a  criminal  prosecution.  Hence  evi- 
dence of  the  giving  of  a  note  on  condition  that  the  promisee 
would  refrain  from  prosecuting  the  promisor  will  sustain  a 
conviction.  The  note  is  a  valuable  consideration.  It  is  void- 
able only  and  may  never  be  disputed.8     Evidence  that  no  ben- 

lrThe  giving  of  a  promissory  note,  160,   163.     For  the  effect  and  conclu- 

necessarily  void,  because  of  illegality  sivenessof  official  returns  as  evidence, 

of  consideration,  does  not  constitute  the  power  of  the  courts  over  them  and 

extortion.      Com.    v.   Cony,   2   Mass.  the  admissibility  of  parol  evidence  to 

523,  524.  show  their  invalidity  and  to  contra- 

2  United  States  v.  Harned,  43  Fed.  diet  their  recitals,  see  Underhill  on 

Rep.  376,  377.  Ev.,  §  150a,  pages  227-230. 

3Spence  v.  Thompson,  11  Ala.  746.  64  Bl.  Com.  136. 

♦United  States  v.  Rose,  12  Fed.  Rep.  'People  v.  Bryon,  103  Cal.  675,  677, 

576.     See  ante,  §  24.  37  Pac.  Rep.  754. 

6  Williams  v.  State,  2  Sneed  (Tenn.)  8  Com.  v.  Pease,  16  Mass.  91,  94. 


§  459  OFFENSES    AGAINST    PUBLIC    JUSTICE.  519 

efit  came  to  the  defendant,  he  having  acted  as  an  agent  for  an- 
other, is  also  irrelevant.1 

The  felony,  which  is  alleged  to  have  been  compounded,  must 
be  proved  to  have  been  committed  by  some  one  beyond  a  rea- 
sonable doubt,  and  this  may  be  done  prima  facie,  by  produc- 
ing a  record  of  a  conviction.2  It  seems  that  it  is  not  necessary 
to  prove  that  any  particular  person  suspected  or  accused  was 
convicted,3  or  even  tried  ;4  if  the  jury  are  satisfied,  beyond  a 
reasonable  doubt  and  on  all  the  evidence,  that  the  accused 
knew  the  criminal  and  took  the  money  corruptly,  not  intending 
to  bring  him  to  justice  but  to  shield  him.5 

§  459 .    Contempt  defined — Inherent  judicial  power  to  punish. 

— Contempt  of  court  is  an  offense  the  essential  ingredients  of 
which  are  disobedience  to  the  court  or  despising  or  opposing 
its  authority  or  dignity.  It  may  consist  of  disorderly  or  in- 
solent behavior  or  language  indulged  in  in  the  actual  presence 
of  the  court,  in  willful  disobedience  to  its  mandate,  in  resist- 
ing or  evading  its  process,  or  in  assaulting  its  officer.  So,  too, 
using  language  which  is  scornful  or  reproachful,  or  which 
tends  to  diminish  the  respect  for  or  authority  of  the  court,  or 
which  is  likely  to  obstruct  the  service  or  execution  of  its  process 
or  orders,  is  contempt.  And  generally  to  abuse  judicial  process  by 
willfully  executing  it  in  an  illegal  manner,  or  making  use  of 
it  to  do  wrong  under  the  color  or  pretense  of  the  authority  of 
the  court,  is  a  contempt.6 

The  power  to  punish  for  contempt  is  inherent  in  every  court 
of  justice.  And  to  deny  this  power,  or  to  abridge  it  in  any 
material  respect,  is  to  deprive  the  court  of  the  power  to  protect 
itself  from  insult,  to  render  it  the  mark  of  insult  and  obloquy, 

1  State  v.  Ruthven,  58  Iowa  121,  124.  of  the  criminal,  as  it  may  have  been 

2  State  v.  Duhammel,  2  Harr.  (Del.)  procured  by  his  own  corrupt  act.    Peo- 
532.     Of.  ante,  §  195.         •  pie  v.  Buekland,  13   Wend.  (N.   Y.) 

3  Fribly  v.  State,  42  Ohio  St.  205,  206.  592,  596.     As  to  proof  of  judicial   rec- 

4  Watt  v.   State,   97  Ala.  72,  11  So.  ords,   see   Underhill   on    Ev.,   Chap. 
Rep.  901.  XIII. 

5Pascoe's  Case,   1  Den.  C.  C.  456,        64  Bl.  Com.  283;  Ex  parte  Cohen, 
458.     The    person    accused    of    com-    5  Cal.  494. 
pounding  can  not  prove  the  acquittal 


520  CRIMINAL  EVIDENCE.  §  460 

and  to  take  from  it  the  ability  to  enforce  its  mandates  and  de- 
crees, or  to  perform  the  functions  and  powers  with  which  it  is 
invested  by  the  law.1 

§  460.  Direct  and  constructive  contempt  distinguished  — 
Court  may  take  notice  of  without  evidence. — A  contempt  may 
be  direct,  as  when  it  is  committed  in  the  actual  presence  of  the 
court  while  sitting  as  such,  or  constructive,  that  is,  not  com- 
mitted in  its  presence,  though  tending  to  embarrass,  hinder  or 
prevent  the  administration  of  justice.2  Because  of  this  differ- 
ence in  the  nature  of  the  contemptuous  act,  two  methods  of 
procedure  and  of  proof  have  been  adopted.  The  court  will  of 
its  own  motion  notice  and  punish  a  direct  contempt.  The 
judge  acts  upon  knowledge  which  he  has  acquired  by  his  own 
organs  of  hearing  and  sight.  The  judicial  power  may  act 
summarily  to  punish  the  contempt  which  the  judicial  eye  has 
seen  and  the  judicial  mind  has  apprehended.  There  need  be 
no  charge,  no  plea,  no  issue,  no  trial,  no  examination,  no  proof 
and  no  record.3  As  soon  as  the  contempt  is  committed,  the 
court  may  act  at  once,  for  though  the  guilty  party  immedi- 
ately withdraws  and  goes  beyond  the  reach  of  the  court,  the 
jurisdiction  remains.  It  is  not  necessary  that  he  should  be 
brought  into  court.  He  may  be  sentenced  for  contempt,  though 
absent.4     The  power  to  commit  for  a  direct  contempt  must  of 

1  State  v.  Morrill,  16  Ark.  384,  389;  the  latter  was  anciently  called,  conse- 
Cossart  v.  State,  14  Ark.  538;  United  quential.  A  direct  contempt  is  an 
States  v.  Hudson,  7  Cranch  32,  34;  open  insult,  in  the  face  of  the  court, 
Ex  parte  Adams,  25  Miss.  883,  885 ;  to  the  person  of  the  judges  while  pre- 
Cartwright's  Case,  114  Mass.  230,  238;  siding,  or  a  resistance  to  its  powers  in 
Anderson  v.  Dunn,  6  Wheat.  204;  their  presence.  A  constructive  con- 
Tenney's  Case,  23  N.  H.  162;  State  v.  tempt  is  an  act  done,  not  in  the  pres- 
Copp,  15  N.  H.  212;  State  v.  Matthews,  ence  of  the  court,  but  at  a  distance, 
37  N.  H.  450,  453;  Middlebrook  v.  which  resists  their  authority,  as  dis- 
State,  43  Conn.  257,  268.  obedience  to  process,  or  an  order  of 

2  Stuart  v.  People,  3  Scam.  (111.)  395.  the  court,  such  as  tends  in  its  opera- 

3  People  v.  Turner,  1  Cal.  152,  155;  tion  to  obstruct,  interrupt,  prevent  or 
State  v.  Matthews,  37  N.  H.  450,  453.  embarrass  the  administration  of  jus- 
The  court  says  in  Ex  parte.  Wright,  65  tice." 

Ind.  504,  508 :  "A  contempt  of  court  4  Middlebrook  v.  State,  43  Conn.  257, 
is  either  direct  or  constructive ;  or,  as     269. 


§  4G1  OFFENSES    A(iAINST    PUBLIC    JUSTICE.  521 

necessity  be  arbitrarily  and  summarily  exercised,  that  disorder 
may  be  quelled  without  delay  and  the  dignity  of  the  court 
maintained.  The  facts  of  the  contempt,  together  with  the 
judgment,  are  usually  entered  upon  the  record,  which  is  con- 
clusive as  evidence  of  all  facts  which  it  contains.1 

§  461.  Procedure  in  receiving  evidence  of  constructive  con- 
tempt.— The  contempt  is  constructive  when  it  is  committed 
out  of  the  actual  presence  and  hearing  of  the  court,  so  that  the 
court  has  no  personal  knowledge  of  it.2 

The  contempt  must  be  proved  by  the  affidavits  of  eye-wit- 
nesses, upon  which  an  order  to  show  cause  may  issue.3  It  is 
only  when  the  contempt  is  flagrant  and  clearly  shown  that  an 
attachment  will  issue  in  the  first  instance.4  The  proceedings 
on  the  return  of  the  writ  are  regarded  as  criminal,5  and  the 
accused  has  the  right  to  be  heard  and  to  defend  himself.6  He 
may  file  counter  affidavits,  or  demand  that  the  prosecutor  shall 
file  interrogatories  for  him  to  answer.  These  are  usually  filed 
with  the  clerk  and,  with  the  answers  of  the  accused  thereto, 
may  be  taken  down  by  the  clerk,  or  by  a  commissioner  ap- 
pointed for  the  purpose,  and  referred  to  the  court.7 

One  charged  with  criminal  contempt  enjoyed  at  common  law 
the  right  to  purge  himself  if  possible,  by  his  oath,  and  all  evi- 
dence which  would  controvert  his  sworn  answer  on  any  matter 
of  fact  was  rigidly  excluded.8   The  rule  in  equity  was  otherwise,9 

1  State  v.  Woodfin,  5  Ired.  (N.  Car.)  450,  453;   People  v.   Brown,   6  Cow. 

L.  199,200.  (N.   Y.),  41;  Hollingworth  v.  Duane, 

8  State  v.  Matthews,  37  N.  H.  450,454.  Wall.  C.  C.  78. 

'Jordan  v.  Circuit  Court,  69  Iowa  8  Esparto  Pitman,  1  Curtis  C.  C.  186, 

177.  190;   United  States  v.  Dodge,  2  Gall 

,    *  State  v.   Mathews,  37  N.  H.  450,  C.  C.  313;  State  v.  Tipton,  1  Blackf. 

454;  In  re  Judson,  3  Blatch.  C.  C.  148.  (Ind.)  166;  Murdoek's  Case,  2  Bland. 

5  Ex   parte   Langdon,    2-"i  Vt.  680;  461 ;  Burke  v.  State,  47  Ind.  628 ;  State 

United  States  v.  Wayne,  Wall.  C.  |C.  v.  Earl,  41  Ind.  464;  People  v.  Comp- 

134  ;  State  v.  Matthews,  37  N.  H.  450,  ton,  1  Duer  (N.Y.)  512 ;  Rex  r.  Wheel- 

455.  er,  1  W.  Bl.  311. 

6People  v.  Wilson,  64  111.  195;  Jor-  94  Bl.  Com.  288;  Rex  b.  Vaughan, 

dan  v.  Circuit,  69  Iowa  177.  2  Doug.  516;  Cartwright's  Case,  114 

7Com.   v.  Snowden,  1  Brew.  (Pa.)  Mass.  230,239. 
218,  219;  State  v.  Matthews,  37  N.  H. 


522 


CRIMINAL    EVIDENCE. 


§462 


and  doubtless  the  modern  practice  would  be  to  receive  proofs 
on  both  sides,  including  the  sworn  answers  of  the  respondent, 
admitting  them  as  evidence  in  his  favor,  to  be  considered  and 
weighed  as  part  of  the  evidence.  The  accused  is  not  confined 
to  his  answers,  but  may  examine  witnesses  in  his  own  favor.1 
If  from  his  answers  it  appears  that  he  was  not  intentionally 
contumacious  but  was  acting  in  good  faith,  he  should  be  dis- 
charged.2 The  contempt  must  be  proved  to  the  satisfaction  of 
the  court  either  by  the  respondent's  answers  or  by  other  wit- 
nesses in  addition  to  the  affidavits.3  Where  the  respondent 
fails  to  appear,  or,  if  he  appears  and  admits  his  guilt,  the  court 
may  at  once,  render  its  decision  and  inflict  summary  punish- 
ment.   He  is  not  entitled  to  a  jury  trial.4 

§  462.  Escape — Distinct  from  prison  breach. — A  person  who, 
being  a  prisoner  in  lawful  confinement  or  custody,  regains  his 
liberty  with  or  without  force,  prior  to  his  legal  discharge,  or 
who,  having  a  prisoner  lawfully  in  his  custody,  suffers  him  to 
regain  his  liberty  before  his  legal  discharge,  is  guilty  of  an 
escape.5 

§  463.    Intention  in  permitting  escape — Negligence  of  officer. 

— A  sheriff  or  other  officer  is  guilty  of  a  misdemeanor  if  through 


1  Magennis  v.  Parkhurst,  3  Green 
Ch.  433;  Whittem  v.  State,  36  Ind. 
196,  213;  Com.  v.  Dandridge,  2  Va. 
Cas.  408;  State  v.  Matthews,  37  N.  H. 
450,  455. 

2  People  v.  Few,  2  Johns.  (N.  Y.) 
290;  State  v.  Trumbull,  1  Southard 
(N.  J.)  139;  Ex  parte  Beebees,  2  Wall. 
Jr.  C.  C.  127. 

3  Com.  v.  Davis,  1  W.  N.  C.  (Pa.)  18 ; 
Albany  Bank  v.  Schermerhorn,  9 
Paige  Ch.  (N.  Y.)  372;  State  v.  Mat- 
thews, 37  N.  H.  450,  455. 

4  State  v.  Matthews,  37  N.  H.  450, 
456;  Neel  v.  State,  4  Eng.  (9  Ark.) 
259,  270;  State  v.  Becht,  23  Minn.  411, 
412. 

5  2  Hawk's  Pac.  C.  C.  18,  19 ;  2  Bish. 


Cr.  L.,  §§  1064-1066 ;  Whart.  C.  L.  1067. 
An  escape  is  distinguished  from  prison 
breach  and  rescue  in  that  the  latter 
offenses  are  necessarily  accomplished 
by  force  exerted  by  the  prisoner  him- 
self in  the  case  of  prison  breach  and 
by  others  in  the  case  of  rescue.  An 
actual  breaking  is  not  necessary  to 
constitute  prison  breach.  A  construc- 
tive breaking  is  enough.  Randall  v. 
State,  53  N.  J.  L.  485,  490,  22  Atl. 
Rep.  46.  An  escape  from  the  lawful 
custody  of  an  officer  de  facto,  capable 
of  making  an  arrest,  is  an  offense 
and  it  can  not  be  proved  that  his  ap- 
pointment was  conditional  when  he 
has  actually  served  as  an  officer.  Rob- 
inson v.  State,  82  Ga.  535,  547. 


§  463  OFFENSES    AGAINST    PUBLIC    JUSTICE.  523 

his  negligence  a  prisoner  escapes  from  his  custody  without  his 
consent  and  is  not  recaptured  before  lie  is  out  of  sight.  The 
defendant  may  offer  evidence  to  show  the  escape  was  the 
result  of  the  act  of  God,  or  of  the  public  enemy;  but  not  to 
show  that  the  place  of  custody  was  defectively  constructed.1 
Whether  the  defendant  was  negligent  in  permitting  an  escape 
is  for  the  jury.  Omitting  to  handcuff  a  prisoner  and  letting 
him  go  out  of  sight  do  not  constitute  negligence  in  law,  but 
are  facts  from  which  it  may  be  inferred.2  Actual  negligence 
need  not  be  proved.  It  may  be  inferred  from  the  fact  of  the 
escape  alone.  The  defendant  then  has  the  burden  of  proof  to 
show  due  diligence,  the  use  of  all  lawful  means  to  prevent  the 
escape,  and  that  it  was  caused  by  the  act  of  God,  or  by  some 
irresistible  force.3 

A  material  and  important  distinction  is  made  between  the 
voluntary  act  of  an  officer,  who  knowingly  and  voluntarily 
gives  a  prisoner  his  liberty,  and  one  who  suffers  his  prisoner 
to  escape  because  of  his  negligence  in  guarding  him.  In  the 
former  case,  the  intention  to  do  a  wrong  is  an  essential  and 
fundamental  fact,  but  may  be  inferred  from  the  facts  in  the  case.4 
At  common  law  an  official  who  permitted  a  voluntary  escape 
involves  himself  in  the  guilt  of  the  crime  charged  against  his 
prisoner.5  But  a  negligent  escape  is  at  most  a  misdemeanor 
only.6  The  accused  custodian  may  always  show,  to  rebut  the 
intention  of  allowing  a  voluntary  escape,  that  he  acted  bona 

^hattuck  v.   State,    51   Miss.  575,  of  the  jailer  or  his  officers.     Bish.  Cr. 

580,  584;  State  v.  Halford,  6  Rich.  (S.  Law,  §  1096. 

Car.)  58.  'In  order  to  constitute  the  crime  of 

2  State  v.   Hunter,   94  N.  Car.  829,  voluntary    escape,    the   act    must    be 

835;  Shattuck  v.  State,  51  Miss.   575,  done  by  the  officer  malo  <nu>n<>,  and 

580.  if  he  discharge  the  prisoner  through 

3 See  cases  in  last  note.     So  strongly  an    erroneous    interpretation    of    the 

does  the  law  incline  to  presume  neg-  law  he  is  not  guilty  of  thai  crime,  but 

ligence  in  the  officer,  where  an  escape  of    the    minor  offense    of    negligent 

occurs,    that,    though    such    prisoner  escape.     Meehan  v.  State,  46  N.  J.  L. 

should  break  jail,  yet  it  seems  that  it  355,358.     See,  also,  Martin  v.  State, 

will  be  deemed  a  negligent  escape  in  32  Ark.  124,  12(1. 

the  jailer,  because  it  will  be  attributed  53  Hawk.  P.  C.  254. 

to  a  want  of  due  vigilance  on  the  part  6  State  v.  Sparks,  78  Ind.  166,  167. 


524  CRIMINAL    EVIDENCE.  §  464 

fide  in  discharging  a  prisoner  or  that  he  did  not  know  that  a 
discharge  regular  on  its  face  was  invalid  and  illegal.1 

§464.  Aiding  prisoner  to  escape. — At  common  law,  and 
frequently  by  statute,  a  person  who  conveys  disguises,  weapons, 
etc.,  into  a  jail  with  the  intent  to  facilitate  the  escape  of  a  pris- 
oner, or  in  any  other  way  assists  in  an  escape,  is  guilty  of 
felony.2  A  general  intent  to  aid  some  prisoner  to  escape  must 
be  proved  and  may  be  inferred  from  proof  of  an  intentional 
prison  breaking  by  the  accused.  But  an  especial  intent  to 
liberate  or  to  aid  in  the  escape  of  any  particular  prisoner  need 
not  be  proved.3  Expert  testimony  will  be  received  to  show 
how  articles,  which  are  alleged  to  have  been  furnished  to  aid 
an  escape,  may  be  used  for  that  purpose.4 

§  465.  Illegality  of  arrest,  when  relevant. — It  is  generally 
presumed,  in  the  absence  of  evidence  to  the  contrary,  that 
courts  of  general  or  superior  jurisdiction  have  acted  regularly 
and  legally  within  the  boundaries  of  their  powers  and  juris- 
diction,5 and  that  public  officials  have  obeyed  the  law  and  done 
their  duty.  But  the  accused,  whether  a  prisoner  under  indict- 
ment who  has  escaped  or  attempted  to  do  so,6  a  person  con- 
fined under  civil  process,7  or  an  official  charged  with  a 
voluntary  escape,8  may  show  that  the  detention  was  without 
any  warrant,9  or  under  one  issued  by  a  court  having  no  juris- 
diction.10 If  the  legality  of  the  custody  is  attacked  the  burden 
of  proof  to  convince  the  jury  of  the  legality  of  the  custody  is 
upon  the  state.11    The  records  of  the  committing  court  and  the 

'Meehan  v.  State,  46  N.  J.  L.  355,  7Com.  v.  Barker,  133  Mass.  399. 

358.  8Housh  v.  People,  supra. 

2  Wilson  v.  State,  61  Ala.  151,  154.  9  People  v.  Ah  Teung,  92  Cal.  421, 

3  Hnrst  v.  State,  79  Ala.  55,  58 ;  Hoi-  425 ;  State  v.  Hollon,  22  Kan.  580, 584. 
land  v.  State,  60  Miss.  939;  Vanghan  10Housh  v.  People,  supra;  Martin  v. 
v.  State,  9  Tex.  App.  563;  Simmons  v.  State,  32  Ark.  124,  129. 

State,  88  Ga.  169.  "State  v.  Hallon,  22  Kan,  580,  584; 

4  Watson  v.  State,  32  Tex.  Cr.  Rep.  State  v.  Beebe,  13  Kan.  589,  593,  595; 
80,  22  S.  W.  Rep.  46.  State   v.  Jones,  78   N.    Car.  420,  422; 

Hlnderhill  on  Ev.,  §  232.  State  v.  Baldwin,  80  N.  Car.  390,  393, 

6Housh  v.  People,  75  111.  487,  491;     2  Bish.  C.  L.,  §  1065. 
State  v.  Leach,  7  Conn.  452,  456. 


§  46G  OFFENSES    AGAINST    PUBLIC    JUSTICE.  ■V_>5 

warrant  itself  are  relevant  to  show  the  lawfulness  of  the 
custody.1  If  the  lawfulness  of  the  custody  is  proved,  evidence 
that  the  prisoner  was  subsequently  acquitted  is  irrelevant.' 
Nor  can  the  accused  be  permitted  to  introduce  evidence  of  the 
filthy  and  unwholesome  condition  of  the  jail  to  show  his 
escape  was  absolutely  necessary  to  preserve  his  health  unless 
he  shows  he  had  exhausted  all  lawful  means  of  obtaining  re- 
lief by  complaining  to  the  authorities.8 

§  466.    Perjury — The  intent  to  swear   to   what  is   false. — 

This  crime  may  be  denned  as  the  taking  of  a  willful  false  oath 
by  one  who,  being  lawfully  required  to  depose  the  truth  in  any 
judicial  proceeding,  swears  absolutely  in  a  matter  material  to 
the  point  in  question.4  Proof  of  a  willful  intention  to  swear 
falsely  is  necessary.5  It  is  for  the  jury  to  determine  whether 
the  accused  was  or  was  not  honestly  mistaken  in  testifying.  It 
is  not  sufficient  to  prove  that  testimony,  alleged  to  be  false, 
has  been  given,  and  that  it  was  false.  It  must  also  be  proved 
beyond  a  reasonable  doubt  that  the  accused  knew  its  falsity, 
and  that  he  willfully,  corruptly,  and  with  deliberation  and 
consideration,  swore  to  it  as  true.6  Evidence  of  the  conduct 
and  actions  of  the  accused  while  he  was  testifying,  as,  for  ex- 
ample, that  he  was  insolent,  and  had  to   be   rebuked  by  the 

1  State  v.  Whalen,  98  Mo.  222,  11  S.  State  v.  Murray,  15  Me.  100, 103 ;  State 

W.  Rep.  576.     The  fact  that  a  person  v.  Armistead,    106   N.  Car.  639,   644; 

was  in  lawful  custody  who  was  accused  Com.  v.  Moriban,  4  Allen  585 ;  People 

of  resisting  his  jailer  must  be  proved  v.  Ah  Teung,  92  Cal.  421,  426. 

by  the  mittimus.     People  v.  Muldoon,  2  State  v   Lewis,  1!)  Kan.  2(50,  265. 

2  Park.  Cr.  Rep.  13.   The  distinction  is  8  State  v.  Davis,  14  New  439,  445. 

very  clear  between  an  imprisonment  4  Com.  v.  Smith,  11  Allen    (Mass.) 

without    process,  and    hence   wholly  243. 

illegal,  and   an    imprisonment  under  5  1  Hawk's  P.  C,  Ch.  69,  sec.  2. 

process  which  is  substantially  legal,  'People  '•.  German   (Mich.,  1S96), 

but  which  may  be  technically  irregu-  68  N.W.  Rep.  150;  People  v.  Ross,  103 

lar.     The  fact  that  the  imprisonment  Cal.  425,  37  Pac.  Rep.  379;    Davidson 

was  without  process   may  always  be  v.  State.  22  Tex.   App.   372,  3   S.  W. 

shown.    But  the  courts  rather  discour-  Rep.   662;    People  v.  Stone,  32  Hun 

age  the  practice  of  attaekine:  process  (N.  Y.)41;  McClerkin  v.  State,  20  Fla. 

collaterally  by  rejecting  evidence  of  879;  Williams  v.  Com.,  91  Pa.  St.  493. 
mere  technical  irregularities  therein. 


526  CRIMINAL  EVIDENCE.  §  467 

court,1  and  of  his  manner  of  speaking  when  on  the  witness 
stand,  is  relevant  to  show  guilty  knowledge  and  intent.  It  may 
also  be  shown  for  the  same  purpose  that  the  accused  had  tried 
to  induce  another  witness  to  give  false  testimony.2 

§  467.  Materiality  of  the  testimony. — The  materiality  of  the 
testimony  which  is  alleged  to  be  false  must  be  established  satis- 
factorily.3 Whether  the  testimony  was  material  is  for  the 
court.4  The  opinions  of  witnesses  who  heard  it  that  it  was  or 
was  not  material  are  never  received.5 

§  468.  Number  of  witnesses  required  and  corroboration  of 
single  witness  to  prove  falsity. — According  to  the  earlier  cases 
no  conviction  of  perjury  could  be  had  unless  the  falsity  of  the 
evidence  given  under  oath  was  proved  by  the  direct  evidence 
of  two  credible  witnesses,  the  evidence  of  the  second  witness 
being  required  to  overcome  the  presumption  of  innocence 
which  the  law  indulged  in  favor  of  the  accused.6  Such  is  not 
now  the  law.  The  accused  may  be  convicted  on  the  evidence 
of  one  witness,  which,  however,  must  in  all  cases  be  corrobo- 
rated. The  corroboration  need  not  be  equivalent  or  tanta- 
mount to  another  witness.7  But  it  must  be  clear  and  positive 
and  so  strong  that,  with  the  evidence  of  the  witness  who  tes- 

1  Foster  v.  State,  32  Tex.  Cr.  Rep.  39,  431,  46  Pac.  Rep.  713 ;  Powell  v.  State 
22  S.  W.  Rep.  21.  (Tex.,  1897),  37  S.  W.  Rep.  322. 

2  Heflin  v.  State,  88  Ga.  151,  14  S.  E.  5  Foster  v.  State,  32  Tex.  Cr.  Rep.  39, 
Rep.  112.  22  S.  W.  Rep.  21 ;  Washington  v.  State, 

8  Leak  v.  State,  61  Ark.  599,  33  S.  23  Tex.  App.  336,   5  S.  W.  Rep.  119; 

W.  Rep.  1067 ;  Masterson  v.  State,  144  Gordon  v.  State,  48  N.  J.  L.  611,  7  Atl. 

Ind.  240,  43  N.  E.  Rep.  138;  State  v.  Rep.  476;  Peters  v.  United  States,  2 

Swafford  (Iowa,  1896),  67  N.  W.  Rep.  Okla.  138,  33  Pac.  Rep.  1031 ;  Butler  r. 

284;  People  v.  Macard  (Mich.,  1896),  State  (Tex.,  1897),  37  S.  W.  Rep.  746; 

67  N.  W.   Rep.  968;   Rich  v.  United  State  v.  Sutton  (Ind.,  1897),  46  N.  E. 

States,  1  Okla.  354, 33  Pac.  Rep.  804.  Rep.  468. 

4  State  v.  Caywood  (Iowa,  1896),  65  61  Greenl.  on  Ev.,  257;  4  Bl.  Com. 

N.   W.    Rep.   385;  State  v.   Swafford  358;  3  Russell  on  Crimes  179. 

(Iowa,    1896),    67    N.    W.    Rep.   284;  71    Greenl.    on   Ev.,  257;    State  v. 

Hanscom  v.  State,  93  Wis.  273,  67  N.  Peters,  107  N.  Car.  876,  12  S.  E.  Rep. 

W.  Rep.  419;  State  v.  Park,  57  Kan.  74. 


468 


OFFENSES    AGAINST    PUBLIC   JUSTICE. 


527 


tifies  directly  to  the  falsity  of  the  defendant's  testimony,  it  will 
convince  the  jury  beyond  a  reasonable  doubt.1 

The  direct  evidence  of  the  witness  maybe  corroborated  by  cir- 
cumstantial evidence.  All  relevantevidence  which,  if  true,  tends 
to  corroborate  him,  should  go  to  the  jury,  and  it  is  for  them  to 
determine  whether  the  corroboration  is  sufficient  to  convince 
them  of  the  falsity  of  the  defendant's  testimony  beyond  a  reason- 
able doubt.2  And  the  written  or  oral  admissions  of  the  accused,8 
or  documentary  evidence  found  in  his  possession,  or  in  the 
possession  of  these  who  may  be  criminally  associated  with 
him,  may  be  received  as  corroborative,  and  these,  if  believed 
by  the  jury,  will  be  equivalent  to  another  witness.4 

Where  the  indictment  contains  several  assignments  of 
perjury,  a  conviction  can  not  be  had  on  the  direct  evidence  of 
a  living  witness  to  the  falsity  of  one  with  circumstantial  evi- 


1  Com.u.Butland, 119  Mass.317 ;  State 
v.  Blize,  111   Mo.  464;  State  v.  Miller, 
44  Mo.  App.  159;  State  v.  Gibbs,  10 
Mont.  213;  People  v.  Stone,  32  Hun 
(N.  Y.)  41;  Waters  v.   State,  30  Tex 
App.  284;  McClerkin  v.  State,  20  Fla 
879;    Heflin    v.    State,   88    Ga.    151 
United  States  v.  Wood,  14  Peters  430 
United  States  v.  Hall,  44  Fed.  Rep 
864;  Harris  v.  People,  64  N.  Y.  148 
People  v.  Hayes,  70  Hun  111,  24  N.  Y 
Supp.  194  ;  Reg.  v.  Braithwaite,  8  Cox 
C.  C.  254;  Reg.  o.  Shaw,  10  Cox  C.  C. 
66;  Com.  v.  Parker,  2  Cush.  (Mass.) 
212. 

2  State  v.  Blize,  111  Mo.  464,20  S. 
W.  Rep.  210;  Beach  v.  State,  32  Tex. 
Cr.  Rep.  240,  22  S.  W.  Rep.  976;  State 
v.  Swaim,  97  N.  Car.  462,  2  S.  E.  Rep. 
68;  People  v.  Hayes,  70  Hun  (N.  Y.) 
Ill;  Mainea  ».  State,  26  Tex.  App.  14; 
Gartman  o.  State,  16  Tex.  App.  215; 
Com.  v.  Parker,  2  Cush.-  (Mass.)  212; 
State  r.  Heed,  57  Mo.  252;  People  r. 
Davis.  61  Cal.  536;  Williams  v.  Com., 
91  Pa.  St.  493. 

3  State  v.  Swafford,  (Iowa,  1896),  67 
N.  W.  Rep.  284;  United  States  v.  Am- 


ador, 6  N.  M.  173,  27  Pac.  Rep.  488; 
Brooks  v.  State,  29  Tex.  App.  582,  16  S. 
W.  Rep.  542 ;  United  States  v.  Woods, 
14  Peters  430,  440,  441. 

4  The  circumstances  in  which  the 
corroboration  by  a  living  witness  may 
be  dispensed  with  are  thus  tersely 
enumerated  in  United  States  v.  Wood, 
14  Peters  430,  on  page  440 : 

1.  Where  the  accused  has  sworn  to 
a  fact  which  is  directly  disproved  by 
documentary  or  written  testimony 
springing  from  himself  (t\  e.,  a  written 
admission)  under  circumstances  show- 
ing a  corrupt  intent. 

2.  Where  the  fact  sworn  to  is  di- 
rectly contradicted  by  a  public  record 
with  which  the  accused  is  proved  to 
have  had  an  actual  acquaintance. 

3.  Where  he  swears  to  what  he 
must  necessarily  have  known  to  be 
false,  and  where  the  truth  can  be 
proved  by  his  own  letters  relating  to 
the  fact,  or  by  other  written  evidence 
found  in  his  possession,  and  which 
has  been  treated  by  him  as  containing 
a  true  account  of  the  facts  stated. 


528 


CRIMINAL    EVIDENCE. 


§  469 


dence  of  the  falsity  of  another.  The  evidence  of  the  witness 
and  the  evidence  of  circumstances  must  both  bear  upon  the 
falsity  of  the  same  statement  of  fact.1  Whether  a  witness  is  credi- 
ble, under  a  statute  requiring  corroboration  by  evidence  of  a 
credible  witness  is  a  question  for  the  jury.2  In  conclusion,  it 
may  be  said  that  any- fact  essential  to  conviction,  except  the 
falsity  of  the  testimony  given  by  the  accused,  may  be  proved 
by  the  uncorroborated  testimony  of  a  single  living  witness.3 

§  469.  Falsity  of  the  testimony. — The  falsity  of  the  state- 
ment, or  of  the  evidence  to  the  truth  of  which  the  accused  has 
sworn,  must  be  proved  beyond  a  reasonable  doubt.4 

Any  fact  is  relevant  which  proves  or  tends  to  prove  or  to  dis- 
prove either  its  truth  or  its  falsity.5  Though  both  at  common 
law  and  by  statute  corroboration  is  required,  the  falsity  of  the 
statement  may  be  proved  by  circumstantial  evidence.6 

§  470.  Proof  of  the  testimony  alleged  to  be  false. — It  must 
be  shown  that  the  accused  was  sworn,7  by  an  officer  who  had 
legal  authority  to  administer  the  oath.8    The  testimony  in  giv- 

1  Reg.  v.Virrier,  12  A.  &  E.  317,  324; 
Reg.  v.  Parker,  1  C.  &  M.  639;  Wil- 
liams v.  Corn.,  91  Pa.  St.  493,  501; 
State  v.  Hascall,  6  N.  H.  352;  Harris 
v.  People,  64  N.  Y.  148;  Adelberger  v. 
State  (Tex.  Or.,  1897),  39  S.  W.  Rep. 
103.  "  It  will  not  be  sufficient  to  prove 
by  some  inadequate  line  of  testimony 
that  one  statement  made  by  the  ac- 


1896),  67  N.  W.  Rep.  968;  Rogers  v. 
State  (Tex.,  1896),  32  S.  W.  Rep. 
1044;  United  States  v.  Shinn,  8  Saw. 
403,  410,  411 ;  United  States  v.  Moore, 
2  Low.  232,  235,  238;  State  v.  Smith, 
119  N.  Car.  856,  25  S.  E.  Rep.  871. 
But  the  fact  that  the  accused  was  ac- 
quitted on  the  former  trial,  during 
which  he  is  charged  with  having  com- 
cused  is  false,  and  then  by  another  mitted  the  perjury,  is  not  admissible 
inadequate   line  that  another    state-    to  prove  the  truth  of    his  testimony 


ment  is  false."  Wharton  Cr.  Ev., 
§387. 

2  Meeks  v.  State,  32  Tex.  Cr.  Rep. 
420;  Kitchen  v.  State,  29  Tex.  App. 
45,  14  S.  W.  Rep.  392. 

3 United  States  v.  Hall,  44  Fed.  Rep. 
864;  People  v.  Hayes,  70  Hun  111,  24 
N.  Y.  Supp.  194. 

4  People  v.  Strassman,  112  Cal.  683, 
45  Pac.  Rep.  3. 

5  Walker  v.  State,  107  Ala.  5,  18  So. 
Rep.  393;  People  v.  Macard  (Mich., 


then  given.  Hemphill  v.  State,  71 
Miss.  877,  16  So.  Rep.  261 ;  Hutcher- 
son  v.  State,  33  Tex.  Cr.  Rep.  67,  24  S. 
W.  Rep.  908. 

6Plummer  v.  State  (Tex.,  1896),  33 
S.  W.  Rep.  228;  Gandy  v.  State,  23 
Neb.  436,  36  N.  W.  Rep.  817;  People 
v.  Porter,  104  Cal.  415,  38  Pac.  Rep.  88. 

7  Sloan  v.  State,  71  Miss.  459,  14  So. 
Rep.  262. 

8  United  States  v.  Curtis,  107  U.  S. 
671 ;  People  v.  Nolte,  19  Misc.  674,  44 


§470 


OFFENSES    AGAINST    PUBLIC    JUSTICE. 


529 


ing  which  the  perjury  is  alleged  to  have  been  committed  must 
be  shown.  The  best  evidence  is  the  record  or  a  certified  copy. 
A  stenographer  may  read  his  notes  of  the  testimony  to  prove 
what  the  accused  said,  if  he  is  able  to  swear  that  they  contain 
a  true  and  correct  transcript  of  all  the  testimony  given  by  the 
accused.1 

An  allegation  that  the  perjury  was  committed  in  a  judicial 
proceeding  is  material  and  it  must  therefore  be  strictly  proved. 
This  may  be  done  by  producing  the  record  of  the  prior  trial 
with  oral  evidence  to  identify  the  accused  as  the  witness  who 
testified.2 


N.  Y.  Supp.  443.  Usually  proof  of  an 
officer  de  facto  will  suffice  and  his  writ- 
ten appointment  need  not  be  pro- 
duced. State  v.  Geer,  48  Kan.  752,  30 
Pac.  Rep.  236.  As  to  judicial  notice 
of  jurisdiction  and  authority  to  ad- 
minister oath,  see  State  v.  Thibodeaux 
(La.,  1897),  21  So.  Rep.  127. 

People  v.  Macard  (Mich.,  1896),  67 
N.  W.  Rep.  968;  State  v.  Camley,  67 
Vt.  322,  31  Atl.  Rep.  840.  It  has  been 
held  also  that  parol  evidence  is  ad- 
missible for  the  same  purpose.  State 
v.  Gibbs,  10  Mont.  213,  25  Pac.  Rep. 
34— Ck.  Ev. 


289.  Even  though  the  witness  does 
not  recollect  all  that  the  defendant 
said,  if  he  can  repeat  the  part  which 
is  alleged  to  be  false.  Hutcherson  v. 
State,  33  Tex.  Cr.  Rep.  67,  24  S.  W. 
Rep.  908.    See,  also,  ante,  §  267. 

2  Heflin  v.  State,  88  Ga.  151, 14  S.  E. 
Rep.  112;  King  v.  State,  32  Tex.  Cr. 
Rep.  463,  24  S.  W.  Rep.  514;  Partain 
v.  State,  22  Tex.  App.  100,  2  S.W.  Rep. 
854 ;  Washington  v.  State,  23  Tex.  App. 
336,5  S.W.  Rep.  119;  State  v.  Howard 
(Mo.,  1897),  38  S.  W.  Rep.  908. 


CHAPTER  XXXI. 

CRIMES    AGAINST    PUBLIC    POLICY,    PUBLIC    PEACE    AND     PUBLIC 

HEALTH. 


§471. 

Lotteries  and  gaming  or  gam- 

§483. 

Dueling— Sending  a  challenge 

bling — What  constitutes. 

to  fight  a  duel. 

472. 

Evidence  to  prove  manner  of 

484. 

Carrying  concealed  weapons — 

playing. 

How   concealment    may  be 

473. 

The  bet  or  wager— Playing  in 

proved — Intent. 

public. 

485. 

Apprehension  of  danger. 

474. 

Accomplice  evidence. 

486. 

Character  of  the  defendant  as 

475. 

Keeping  gambling-houses. 

an  officer  or  traveler. 

476. 

Presumptions  and  burden  of 

487. 

Forcible  entry  and  detainer. 

proof. 

488. 

Affray. 

477. 

Gambling  instruments  as  evi- 

489. 

Riot. 

dence. 

490. 

Conspiracy. 

478. 

Mailing  obscene  literature,  etc. 

491. 

Circumstantial  evidence. 

479. 

Evidence    obtained  by  decoy 

492. 

Admissibility  of  acts  and  dec- 

letters. 

larations  of  fellow-conspira- 

480. 

Adulteration   of    food,   drugs, 

tors. 

etc. 

493. 

Must  be   made  during  exist- 

481. 

Evidence  furnished  by  analy- 

ence of  and  in  furtherance 

sis. 

of  the  conspiracy. 

482. 

Keeping  disorderly  house. 

494. 

Order  of  proving    conspiracy 
to  let  in  declarations. 

§  471.  Lotteries  and  gaming  or  gambling — What  consti- 
tutes.— Gaming  or  gambling  is  a  misdemeanor  by  statute  in 
many  states.  Under  such  statutes  it  is,  of  course,  always  nec- 
essary, in  order  to  sustain  a  conviction,  to  prove  the  necessary 
constituents  of  the  crime,  i.  «.,  the  element  of  chance  in  the 
game  itself,  and  that  a  wager  was  actually  made.  A  game  of 
chance  may  be  defined  as  one  in  which  the  result  is  determined 
by  luck  or  lot,  and  not  by  adroitness,  practice,  skill  or  judg- 
ment in  play,  such   as,  for  example,  cards,  dominoes,1  baga- 

1  Harris  v.  State,  31  Ala.  362. 
(530) 


§472        CRIMES  AGAINST  PUBLIC  POLICY,   PEA<K,    HEALTH.  533 

telle,1  bowls,2  base  ball,3  dice  throwing,*  or  keno.8  Such  games 
are  gambling  when  played  for  money  or  other  valuable  thing. 
And  generally,  betting  on  elections,6  horse  races,7  shooting 
matches,8  billiards,  or  other  game  of  skill,  is  gambling  under 
the  statute.9 

§  472.  Evidence  to  prove  manner  of  playing. — The  jury  are 
not  presumed  to  know  how  an  unlawful  game  is  played,  and 
the  mode  of  playing  may  be  explained  to  them  by  professional 
players  as  expert  witnesses.10  Such  testimony  is  not  indispensa- 
ble. Any  witness  may  describe  a  game  he  has  seen,  though  he 
has  only  played  it  twice,  and  seldom  seen  it  played,11  and  the 
depth  and  extent  of  his  knowledge  and  experience  are  relevant 
to  diminish  or  increase  the  value  of  his  evidence.12 

§  473.  The  bet  or  wager — Playing  in  public. — It  must  be 
proved  that  a  bet  or  wager  was  made,  whether  the  game  be 


deal's  Case,  22  Gratt.  (Va.)  917, 
919. 

2  Com.  v.  Goding,  3  Mete.  (Mass.) 
130. 

3  Mace  v.  State,  58  Ark.  79;  People 
v.  Weithoff,  51  Mich.  203,  209,  212. 

4  State  v.  DeBoy,  117  N.  Car.  702; 
Jones  v.  State,  26  Ala.  155. 

5  Miller  v.  State,,  48  Ala.  122. 

6  Sharkey  v.  State,  33  Miss.  353,  355 ; 
Com.  v.  Kennedy,  15  B.  Mon.  (Ky.) 
531,  533;  Com.  v.  Wells,  110  Pa.  St. 
463,  467.  Contra,  Hickerson  v.  Ben- 
son, 8  Mo.  8. 

7  State  v.  Falk,  66  Conn.  250,  33  Atl. 
Rep.  913 ;  People  v.  Weithoff,  51  Mich. 
203;  Watson  v.  State,  3  Ind.  123,  124; 
Redman  v.  State,  33  Ala.  428. 

8  Myers  v.  State.  3  Sneed  (Tenn.)  98, 
106,  107. 

9  The  charge  of  selling  lottery  tick- 
ets is  sufficiently  proved  by  evidence 
that  the  defendant  received  money  for 
them,  sent  for  them  and  received  a 


commission  for  his  trouble.  The  ticket 
itself  ought  to  be  produced  or  its  ab- 
sence satisfactorily  accounted  for.  An- 
derson v.  State  (Tex.,  1897),  39  S.  W. 
Rep.  109. 

10  Com.  w.Adams,  160  Mass.  310,  312. 

11  Nuckolls  v.  Com.,  32  Gratt.  (Va.) 
884,  887. 

12  One  witness  may  testify  he  saw 
the  defendant  conduct  a  game  for 
money,  describing  it  in  detail,  and 
another  may  then  state  it  was  a  cer- 
tain game,  though  the  hitter  may  have 
seen  the  game  played  only  two  or 
three  times.  People  v.  Sam  Lung,  70 
Cal.  515,  517,  518.  The  courts  will  take 
judicial  notice  of  the  meaning  of  the 
words  "gift  enterprise,"  Lohman  r. 
State,  81  Ind.  15,  18,  and  of  the  use  of 
billiard  tables  for  gamhling  purposes. 
State  v.  Price,  12  Gill  &  J.  260,  but 
not  of  the  fact  that  policy  is  a  game  of 
chance.  State  v.  Sellner,  17  Mo.  App. 
39. 


132 


CRIMINAL    EVIDENCE. 


§47; 


one  of  chance  or  of  skill,1  and  that  the  stake  had  value  intrinsic- 
ally; or  that,  by  agreement  among  the  bettors,  it  represented 
value.2  The  amount  and  character  of  the  articles  wagered  are 
immaterial.  A  conviction  of  gambling  will  be  sustained  by 
proof  of  playing  for  chips  or  checks,3  for  the  price  of  refresh- 
ments,4 or  for  the  riire  of  the  table  or  other  apparatus.5  The 
making  of  the  wager  may  be  inferred  from  an  offer  and  accept- 
ance, and  neither  of  these  need  be  proved  to  have  been  made 
orally  or  in  express  terms.  Both  may  be  inferred  by  the  jury 
from  evidence  that  the  accused  placed  money  or  chips  upon  a 
table  where  a  game  was  in  progress,  without  objection  from 
other  players,6  or  stated  he  would  pay  the  amount  wagered 
after  the  game  was  ended,7  and  even  from  evidence  that  the 
accused  was  sitting  and  playing  at  a  table  upon  which  money 
and  gambling  devices,  such  as  cards  and  a  faro  box,  were  ly- 
ing.8 

Publicity  is  often  by  statute  essential  to  make  it  a  crime  to 
bet  on  a  game  or  sport,  and  must  be  shown.  The  court  can 
not  take  notice  that  certain  places  are  public,  under  a  stat- 
ute which  forbids  gambling  in  public  places.9  Whether  a  game 
is  public,  or  whether  it  is  carried  on  in  a  building  or  place 
which  is  within  the  prohibition  of  the  statute,  is  a  question  for 


1  Middaugh  v.  State,  103  Ind.  78,  80; 
Jackson  v.  State  (Tex.,  1894),  25  S.  W. 
Rep.  773. 

2  Oder  v.  State,  26  Fla.  520,  522,  7 
So.  Rep.  856;  State  v.  Bishel,  39  Iowa 
42. 

3  Porter  v.  State,  51  Ga.  300,  301; 
Ransom  v.  State,  26  Fla.  364,  7  So. 
Rep.  860. 

4  People  v.  Cutler,  28  Hun  (N.  Y.) 
465,  466;  Hitchins  v.  State,  39  N.  Y. 
454,  456;  Walker  v.  State,  2  Swan 
(Tenn.)  287,  290,  291. 

5  Hall  v.  State  (Tex.,  1896),  34  S.W. 
Rep.  122 ;  Alexander  v.  State,  99  Ind. 
450,  451;  Hamilton  ».  State,  75  Ind. 
586,  587;  Bachellor  v.  State,  10  Tex. 
258,  261 ;  Middaugh  v.  State,  103  Ind. 
78,  79. 


6  Thompson  v.  State,  99  Ala.  173,  13 
So.  Rep.  753. 

7  State  n.  Leicht,  17  Iowa  28. 

8  State  v.  Andrews,  43  Mo.  470,  471 ; 
State  v.  Boyer,  79  Iowa  330;  St.  Louis 
v.  Sullivan,  8  Mo.  App.  455,  457,  458; 
Cohen  v.  State,  17  Tex.  142.  Cf.  State 
v.  Middaugh,  103  Ind.  78,  80.  Evi- 
dence that  other  persons,  present  with 
the  accused  in  the  room  where  gam- 
bling is  alleged  to  have  taken  place, 
were  playing  or  betting,  is  relevant; 
and  perhaps  indispensable,  as  the 
defendant  could  not  play  a  game 
alone  or  bet  with  himself.  Thompson 
v.  State,  99  Ala.  173,  13  So.  Rep.  753, 
754. 

9  Grant  v.  State,  33  Tex.  Cr.  Rep.  527, 
27  S.  W.  Rep.  127. 


§474        CRIMES  AGAINST  PUBLIC  POLICY,    PLACE,    HEALTH. 


:.:;:; 


the  jury  to  determine  on  all  the  circumstances.  Evidence  that 
a  game  was  carried  on  in  a  shop,1  or  public  road,2  in  the  office 
of  a  physician,3  magistrate,4  or  broker,5  aboard  a  steamboat  in 
a  navigable  stream,6  or  in  a  barn,7  will  sustain  an  allegation 
that  a  game  was  played  in  public.8 


§  474.  Accomplice  evidence. — The  rules  governing  the  in- 
troduction and  employment  of  this  species  of  evidence9  have 
been  often  modified  by  statute,  so  far  as  the  offense  of  gam- 
bling is  concerned.  Thus  it  has  been  enacted  that  a  convic- 
tion may  be  had  upon  the  uncorroborated  evidence  of  an  ac- 
complice,10 and  that  he  shall  not  be  excused  from  testifying  be- 
cause his  evidence  may  incriminate  him.11  No  person  is  an 
accomplice  unless  proved  to  have  actually  taken  part  in  the 
game  or  to  have  had  a  bet  depending  on  its  result.12 

§  475.  Keeping  gambling  houses. — Keeping  a  public  gam- 
ling  or  gaming  house,  or  keeping  or  exhibiting  implements  for 
gambling,  was  indictable  as  a  nuisance  at  common  law.  It  is 
now  generally  a  statutory  misdemeanor.  The  statutes  differ 
greatly  in  their  details  and  should  invariably  be  consulted  to 
ascertain  what  facts  are  essential  to  be  proven.13  Proof  that 
the  accused  had  actual  custody,  control  or  possession  of  a  pub- 
lic gambling  house,  or  the  fact  that  he  derived  or  expected  to 
derive  gain  or  profit  from  it,  is  always  relevant  and  may  justify 


1  Bentley  v.  State,  32  Ala.  596. 

2  Mills  r.  State.  20  Ala.  86. 

3  Williams  v.  State  (Tex.,  1896),  34 
S.  W.  Rep.  271 ;  Redditt  v.  State,  17 
Tex.  610. 

4  Burnett  v.  State,  30  Ala.  19. 

5  Wilson  v.  State,  31  Ala.  371. 

6  Dickey  v.  State,  68  Ala.  508. 
'Huffman  v.  State,  29  Ala.  40. 

8  Nuchols  v.  State,  109  Ala.  2,  20  So. 
Rep.  564.  See,  also,  Downey  v.  State, 
110  Ala.  99,  20  So.  Rep.  439;  Gomp- 
recht  v.  State  (Tex.,  1897),  37  S.  W. 
Rep.  734. 


9  See  ante,  §§  69-75. 

10  Wright  v.  State,  22  Tex.App.  670. 

11  Cheesum  v.  State,  8  Blackf.  (Ind.) 
332.  See  Moore  v.  State,  77  Ga.  759, 
25  S.  E.  Rep.  362.    See  ante,  §  72. 

12  Com.  v.  Baker,  155  Mass.  287,  29 
N.  E.  Rep.  512. 

13  Cox  v.  State,  95  Ga.  502;  Com.  v. 
Blankinship,  165  Mass.  40;  State  v. 
Metcalf,2  Mo.  App.  Rep.  1269;  Cope- 
land  v.  State  (Tex.,  1897),  38  S.  W. 
Rep.  189. 


534  CRIMINAL  EVIDENCE.  §  47G 

an  inference  that  he  was  keeping  it  in  the  statutory  sense.1 
Proof  of  a  single  act  of  possession  or  supervision  may  not  be 
enough  to  sustain  a  conviction  of  keeping,  for  the  offense  is 
continuous.2  Under  a  statute  prohibiting  generally  the  keep- 
ing of  gambling  houses,  the  particular  game  which  was  played 
need  not  be  alleged,8  or  proved.4  The  reputation  of  the  house 
as  a  gambling  or  disorderly  house  is  incompetent.5  But  the 
reputation  of  those  who  frequent  it,  including  the  defendant, 
as  being  gamblers,  may  always  be  shown.6  Under  a  prosecu- 
tion for  being  a  common  gambler,  it  may  be  shown  that  the 
defendant  visited  the  house  named  in  the  indictment  and  then, 
to  show  he  did  so  for  the  purpose  of  gaming,  his  visits  to  other 
gaming  houses  may  be  shown.7 

A  charge  of  frequenting  gaming  houses  is  not  sustained  by 
showing  that  the  defendant  was  in  such  a  place  on  one  occa- 
sion only.8 

§  476.  Presumptions  and  burden  of  proof. — The  owner  of  a 
house  is  not  presumed,  as  matter  of  law,  to  know  that  gam- 

*Lettz  v.  State  (Tex.,   1894),  21  S.  7  Courtney  v.  State,  5  Ind.  App.  356, 

W.  Rep.  371 ;  Harman  v.  State  (Tex.),  367. 

22  Tex.  1038;  Wren  v.   State,  70  Ala.  8  Green  v.  State,   109  Ind.  175,  176; 

1,  4;  Robbing  v.   People,  95  111.  175,  DeHaven  v.   State,  2  Ind.  App.  376, 

178;  Com.  v.  Clancy,  154  Mass.  128,  27  380.    §§  1884,  2173,  R.  S.  1894,  of  Indi- 

N.  E.   Rep.  1001;   Hamilton  v.  State,  ana,  provides  that  it  shall  be  sufficient 

75  Ind.  586,  591.  evidence   that  a   room   or  house  was 

2  United  States  v.  Smith,  4  Cranch  rented  for  gaming,  if  gaming  is  car- 
U.  S.  C.  C.  659;  Jessup  v.  State,  14  ried  on  to  the  knowledge  of  the  owner 
Ind.  App.  230,  42  N.  E.  Rep.  948.  Con-  or  under  such  circumstances  that  he 
tra,  State  v.  Crogan,  8  Iowa  523,  524.  has  good  reason  to  believe  his  prop- 

3  State  v.  Dole,  3  Blackf.  (Ind.)  294.  erty  is  so  used.    Any  evidence  is  rele- 

4  When  alleged  it  must  be  strictly  vant  to  show  the  use  of  the  room,  and 
proved.  Dudney  v.  State,  22  Ark.  the  owner's  knowledge,  as,  for  exam- 
251,  252.  The  same  rule  is  applicable  pie,  the  general  reputation  of  the 
where  the  statute  forbids  the  playing  room,  the  fact  that  the  lessee  had 
of  games  specified  and  the  games  are  been  convicted  of  gambling,  and  that 
expressly  mentioned  in  the  indict-  the  lessor  resided  near  by.  It  need 
ment.  Webb  v.  State,  17  Tex.  App.  not  be  shown  that  there  was  any 
205.  specific  agreement  as  to  the  use  of  the 

5  Wharton  Cr.  Ev.,  §260.  room.     Voght  v.   State,  124  Ind.  358, 
6 State  v.  Mosby,  53  Mo.  App.  571,    362;  Fisher  v.  State,  2  Ind.  App.  365, 

577.  369. 


§  477         CRIMES  AGAINST  PUBLIC  POLICY,   PEACE,   HEALTH.  535 

bling  is  carried  on  there.  His  knowledge  must  be  shown.1  But 
the  occupant  of  a  house  or  room  is  conclusively  presumed  to 
know  while  he  occupies  it  that  gambling  is  going  on  therein,2 
though  not  subsequently.3 

The  burden  of  proof  is  always  on  the  state  to  show  beyond  a 
reasonable  doubt,  by  direct  or  circumstantial  evidence,  the 
essential  elements  of  the  offense,4  including  the  want  of  con- 
sent, where  a  statute  makes  it  a  misdemeanor  to  permit  a 
minor  to  play  without  his  guardian's  consent.5 

§  477.  Gambling  instruments  in  evidence. — Implements  em- 
ployed in  playing  illegal  games  are  always  admissible,  if 
properly  identified  and  connected  with  the  accused.6  Some- 
times the  police  are  authorized  by  statute  to  seize  articles 
which  may  be  used  for  gambling  purposes,  as  tables,  cards, 
etc.7  While  they  can  not  be  confiscated  or  destroyed  without 
due  notice  to  their  owner  and  an  opportunity  for  him  to  be 
heard  and  to  prove  their  lawful  character  in  judicial  proceed- 
ings,8 the  summary  methods  by  which  the  prosecution  has 
acquired  them  does  not  prevent  their  use  as  evidence  upon  the 
grounds  that  the  accused  is  protected  by  constitutional  pro- 
visions from  being  compelled  to  furnish  evidence  against 
himself.9 

§  478.    Mailing  obscene  literature,  etc. — It  is  provided  by 

statute10  that  all  printed  matter  which  is  obscene  in  its  character, 
and  ever}rthing  which  is  designed  to  prevent    conception  or 

1  Harris  v.  State,  5  Tex.  11.  put  to  him.     Stern  v.   State,  53  Ga. 

2  Robinson  v.  State,  24  Tex.  152.  229;  Goetz  v.  State,  41  Ind.  162. 
•Barnaby  v.  State,  106  Ind.  539,  543.  6  People  v.  Sam  Lung,  70  Gal.  515, 
4Rodifer  v.  State,  74  Ind.  21,  23.  517. 

5Conyers  v.  State,  50  Ga.  103,106,  7Ridgeway   v.  West.   60   Ind.   371; 

107.     Under  an   indictment  for  per-  Com.    v.    Gaming    Implements,    119 

mitting  a  minor  to   play  without  the  Mass.  332. 

consent  of  his  guardian,  the  accused  8 State    v.   Robbins,    124    Ind.   308; 

may  show  that  he  used  care  to  ascer-  Lowry  v.  Rainwater,  70  Mo.  152. 

tain  the  age  of  the  player,  and  for  this  9  Com.  v.  Smith,  166  Mass.  370,  44  N. 

purpose   may   introduce   in   evidence  E.  Rep.  503;    State   v.  Pomeroy,  130 

facts  descriptive  of  his   personal  ap-  Mo.  489,  32  S.  W.  Rep.  1002. 

pearance  and  his  replies  to  questions  10U.  S.  R.  S.  §3893. 


536 


CRIMINAL    EVIDENCE. 


§479 


procure  an  abortion,  or  for  any  immoral  or  indecent  purpose, 
with  all  advertisements  giving  information  where  such  printed 
matter  may  be  obtained,  are  not  mailable,  and  the  act  of  mail- 
ing them  is  punishable.  To  sustain  a  conviction  under  this 
statute  the  following  facts  must  be  proved.  First,  that  the 
article  or  printed  matter  was  obscene  or  intended  for  an  im- 
moral use.1  Second,  that  the  defendant  was  cognizant  of  the 
fact.  Third,  that  he  or  his  agent  deposited  it  in  the  mail.2 
The  gist  of  the  crime  is  the  mailing.  If  this  be  not  shown,  evi- 
dence that  the  defendant  wrote  the  article  is  irrelevant.3 

§  479.  Evidence  obtained  by  decoy  letters. — From  the  very 
necessity  of  the  case,  evidence  obtained  by  the  use  of  decoy  let- 
ters is  received.  The  deceit  and  underhand  methods  employed 
do  not,  in  law,  discredit  such  testimony,  though  of  course 
these  may  be  shown  to  enable  the  jury  to  ascertain  the  motives 
prompting  the  prosecution.4 


1  The  obscenity  of  a  writing,  or  the 
intention  with  which  it  is  to  be  used, 
is  a  question  for  the  jury  on  all  the 
evidence.  The  court  may  instruct  as 
to  the  meaning  of  the  words  used. 
United  States  v.  Davis,  38  Fed.  Rep. 
326,  328;  Rosen  v.  United  States,  161 
U.  S.  29.  The  newspaper  or  other- 
printed  matter  which  is  alleged  to  be 
obscene  may  be  admitted  in  evidence. 
Dunlop  v.  United  States,  165 U.  S.  486, 
17  S.  Ct.  Rep.  375. 

2  United  States  v.  Clark,  37  Fed. 
Rep.  106,  108;  United  States  v.Be- 
bout,  28  Fed.  Rep.  522,  523.  The  gov- 
ernment may,  to  prove  the  mailing, 
give  evidence  showing  the  usual 
course  of  business  in  the  post-office 
and  the  methods  used  in  collecting 
and  distributing  the  mail.  So  it  may 
be  shown  that  on  the  same  day  that  a 
certain  newspaper  was  mailed  which 
is  proved  or  admitted  to  have  been 
received,  other  copies  of  the  same 
newspaper  were  mailed  which  have 
not  been  shown  to  have  been  received. 


Dunlop  v.  United  States,  165  U.  S.  486, 
17  S.  Ct.  Rep.  375. 

3  Thomas  v.  State,  103  Ind.  419,  2  N. 
E.  Rep.  808.  If,  however,  it  appears 
that  he  mailed  it,  evidence  to  show 
that  he  also  wrote  it  is  relevant  to 
show  guilty  knowledge.  The  fact  that 
he  wrote  it  may  be  shown  by  any  of 
the  methods  employed  in  proving 
handwriting.  United  States  v.  Ma- 
thias,  36  Fed.  Rep.  892.  As  to  proof 
of  handwriting,  see  Underhill  on  Ev., 
§§  131-141,  pp.  185-205. 

4  United  States  v.  Whittier,  5  Dill. 
C.  C.  35,  39, 45 ;  United  States  v.  Wight- 
man,  29  Fed.  Rep.  636;  United  States 
v.  Slenker,  32  Fed.  Rep.  691 ;  United 
States  v.  Bott,  11  Blatchf.  C.  C.  346; 
Bates  v.  United  States,  10  Fed.  Rep. 
92,  97,  100 ;  Price  v.  United  States,  165 
U.  S.  311,  17  S.  Ct.  Rep.  366;  Goodev. 
United  States,  159  U.  S.  663.  For  other 
cases  bearing  on  the  general  principles 
of  evidence  obtained  by  artifice,  see 
Underhill  on  Evidence,  §  127,  p.  177. 


§  480        CRIMES  AGAINST  PUBLIC  POLICY,  PEACE,  HEALTH.  537 

Sealed  mail  matter  can  not  legally  be  opened  except  by  the 
addressee.  If  it  is  sought  to  discover  whether  a  package  con- 
tains obscene  articles  or  writings,  a  search  warrant  must  be 
procured.1  When  the  matter  inclosed  is  admitted  in  evidence, 
the  wrapper  or  envelope  should  also  be  received  as  a  part  of 
the  res  gestx  to  show  how  it  reached  the  party  addressed.2 

If  the  meaning  of  the  language  of  an  alleged  obscene  writ- 
ing is  not  clear  to  the  casual  reader,  parol  evidence  is  admis- 
sible to  show  that  it  was  intended  to  give,  and,  in  fact,  does 
give,  information  regarding  obscene  literature.3 

§  480.  Adulteration  of  food,  drugs,  etc. — By  the  common 
law,  and  also  frequently  by  statute,  the  mingling  of  unwhole- 
some ingredients  with  food,  or  the  selling  or  offering  for  sale 
of  adulterated  or  impure  articles  of  food  is  a  misdemeanor. 
A  criminal  intent  need  not  be  proved  under  a  statute  making 
the  mere  act  of  selling  food  adulterated  below  a  certain  stand- 
ard a  misdemeanor.4  Nor  need  it  be  shown  that  the  accused 
knew  of  the  adulteration,  unless  the  statute  expressly  requires 
him  to  know  of  it.5       If  by  statute    it  is  essential    that   the 

1  Ex  parte  Jackson,  96  U.  S.  727.  of  guilt,   when  created,  can  not  be 

2  United  States  v.  Noelke,  17  Blatchf.     overcome  by  proof  of  actual  ignorance 
C.  C.  554.  and  absence  of  an  intent  to  deceive. 

3 United  States  v.  Grimm,  50  Fed.  "Whether  or  not  the  seller  knows 
Rep.  528.  "Where  the  fact  of  the  de-  his  representation  to  be  false,  or  in- 
livery  of  obscene  printed  matter  rests  tends  to  deceive,  is  immaterial.  He 
for  proof  largely  upon  the  presump-  subjects  himself  to  the  penalty  of  the 
tion  of  law  that  public  officials  in  the  statute  by  making  the  representation, 
post-office  department  properly  per-  not  knowing  it  to  be  true."  People 
formed  their  duties,  the  accused  is  v.  Mahaney,  41  Hun  (N.  Y.)  26. 
not  entitled  an  instruction  that,  as  a  5Com.  v.  Evans,  132  Mass.  11 ;  Com. 
rule  of  law,  the  presumption  of  inno-  v.  Vieth,  155  Mass.  442,  29  N.  E.  Rep. 
cence  is  to  be  given  greater  weight  577;  Bissman  v.  State,  9  Ohio  Cir.  Ct. 
than  the  presumption  of  the  proper  Rep.  714;  Myer  v.  State,  10  Ohio  Cir. 
performance  of  duty.  Dunlop  ^.United  Ct.Rep.226;  State  v.  Bockstruck(Mo., 
States,  165  U.  S.  486, 17  S.  Ct.  Rep.  375.  1897),  38  S.  TV.  Rep.  317.     The  courts 

4  People  r.  Kibler,  106  N.  Y.  321,  12  will  take  notice  of  scientific  facts  of  an 

N.    E.   Rep.  795.     A  statute   making  elementary    character,    and     of    the 

proof  of  sale  and  false  representation  meaning  of  words.     The  nature  and 

presumptive  evidence  of  guilt  is  con-  quality  of  various  articles  of  food  in 

stitutional.     And  such  an   inference  common  use,   as  butter,  milk,   bread 


538 


CRIMINAL    EVIDENCE. 


§481 


accused  should  know  of  the  adulterated  condition  of  the  article, 
it  must  be  proved.1  If  actual  adulteration  is  proved  it  may  be 
presumed  to  have  been  done  for  a  fraudulent  purpose,  particu- 
larly if  the  article  sold  was,  either  expressly  or  by  implication 
of  law  (as  is  the  case  in  the  sale  of  provisions),  represented  to 
be  unadulterated  or  of  standard  quality.2  When  the  crime 
is  alleged  with  extreme  particularity,  it  must  be  proved  as 
laid.3  Thus,  evidence  that  the  accused  had  impure  milk  in 
his  possession,  or  that  he  brought  it  to  market,  will  not  sustain 
an  indictment  for  selling  it  or  exposing  it  for  sale.4 

§  481.  Evidence  furnished  by  analysis. — The  evidence  con- 
tained in  a  certificate  of  a  milk  inspector,5  or  that  resulting 
from  a  test  made  with  a  lactometer,  while  not  irrebutable  or 
conclusive  of  the  guilt  of  the  accused6  charged  with  selling 
watered  milk,  is  alwa}rs  relevant,7  if  it  appears  that  the  test 
was  not  too  remote  in  point  of  time  from  the  violation  com- 
plained of.  The  defendant  may  introduce  evidence  to  discredit 
the  results  of  an  analysis  made  by  an  official.  He  may  show 
that  there  has  been  no  physical  interference  with  the  milk 
since  it  was  taken  from  the  cows,8  that  the  chemist  was  ineffi- 
cient  or   inexperienced,  that  the  test  was  made  inaccurately,9 


and  the  like,  need  not  be  shown.  It 
is  otherwise  with  drugs  and  substances 
not  in  ordinary  use.  State  v.  Hutch- 
inson (Ohio,  1897),  46  N.  E.  Rep.  71. 
^anteev.  State  (Tex.,  1890),  10  S. 
W.  Rep.  757.  Such  knowledge  will 
not  be  presumed  from  the  fact  of 
possession  alone.  Sanchez  v.  State,  27 
Tex.  App.  15,  10  S.  W.  Rep.  756. 
Evidence  that  defendant  was  seen  on 
a  wagon,  containing  cans  of  milk, 
that  his  name  was  painted  on  the 
wagon,  and  that  he  gave  samples  of 
milk  taken  from  the  cans  to  the  in- 
spector, is  relevant  to  show  that  he 
had  adulterated  milk  in  his  possession. 
Com.  v.  Rowell,  146  Mass.  128,  15  N. 
E.   Rep.   154.     The  possession  of    a 


servant  is  the  possession  of  his  master. 
Com.  v.  Procter,  165  Mass.  38. 

2  People  v.  West,  106  N.  Y.  293.  Cf. 
State  v.  Hutchinson  (Ohio,  1897),  45 
N.  E.  Rep.  1043. 

3  Com.  v.  Luscomb,  130  Mass.  42. 
4Polinsky  v.   People,  73  N.  Y.   65. 

See,  also,  People  v.  Wright,  19  Misc. 
135,  43  N.  Y.  Supp.  290. 

5  Com.  v.  Waite,  11  Allen  (Mass. 
264. 

6  People  v.  Salisbury,  2  App.  Div. 
(N.  Y.)  39. 

7  Com.  v.  Nichols,  10  Allen  (Mass.) 
199. 

8  People  v.  Salisbury,  2  App.  Div. 
(N.  Y.)  39,  37  N.  Y.  Supp.  420. 

9  State  v.  Groves,  15  R.  I.  208. 


§  482        CRIMES  AGAINST  PUBLIC  POLICY,  PEACE,   HEALTH.  539 

or  under  unfair  conditions,  as  when  the  sample  taken  does  not 
fairly  represent  the  article  whose  quality  is  in  question.1 

The  facts  ascertained  by  a  test  or  analysis  may  by  statute  be 
made  conclusive.  Such  a  statute  is  not  unconstitutional  as 
depriving  one  of  liberty  or  property  without  due  process  of 
law,  provided  it  is  also  enacted  that  the  accused,  as  well  as 
the  prosecution,  may  offer  in  evidence  the  result  of  an  analy- 
sis.2 In  the  absence  of  express  provision  a  statutory  mode 
of  procuring  a  sample  by  a  food  inspector  is  not  exclusive. 
The  evidence  against  the  prisoner  arising  from  an  analysis  of 
a  sample  can  not  be  rejected  because  the  sample  was  obtained 
by  purchase  rather  than  by  a  taking  under  the  statute.3  A 
food  inspector  is  not  the  only  proper  witness  to  prove  adul- 
teration.   Any  person  having  competent  knowledge  may  testify.4 

§  482.  Keeping  disorderly  house. — A  disorderly  house  is 
one  where  lewd,  drunken,  idle  and  dissolute  persons  resort;  or 
whose  inmates  behave  themselves  so  badly  that  it  is  a  nuisance 
to  the  neighbors  ;s  as  a  bawdy  house,  gambling  house,  or  liquor 
saloon  carried  on  so  as  to  violate  the  law,6  or  any  habitation 
which  is  obnoxious  by  reason  of  the  habitual  disturbance, 
noise  or  violent  conduct  which  prevails  there.  Proof  that  a 
house  was  resorted  to  by  persons  for  the  purpose  of  prostitu- 
tion is,  at  common  law,  sufficient  to  sustain  the  charge  of 
keeping  a  disorderly  house.7     The  evidence  of  those  who  have 

People  v.   Hodnett,   68   Hun  341.  that  imitation  butter  or  any  adulter- 

The    accused  may  prove  that   some  ated  article  was  calculated  to  deceive 

statutory   requirement,  as  delivering  the  particular  person  who  bought  it, 

to  him  a  sealed  bottle  containing  a  if  it  appears  that  it  was  an  intentional 

duplicate   sample  of  the  article,  has  imitation    and   calculated  to  deceive 

not    been    complied   with.      Com.  v.  some   person.     People   v.  Arensberg, 

Lockhardt,  144  Mass.  132,  10  N.  E.  105  N.  Y.  123. 

Rep.  511.  5Cahn  v.  State,  110  Ala.  56,  20  So. 

2  People  v.  Cipperly,  101  N.  Y.  634,  Rep.  380;  Price  v.  State,  96  Ala.  1,  11 
following    People  v.   Eddy,   59  Hun  So.  Rep.  128. 

(N.  Y.)  615.  6  People  v.  Eckman,  63  Hun  (N.  Y.) 

3  Com.  v.  Coleman,  157  Mass.   460,     209. 

32  N.  E.  Rep.  662.  7  Com.  v.  Goodall,  165  Mass.  588,  43 

4  Com.  v.  Spear,  143  Mass.  172,  9  N.     N.  E.  Rep.  520;  State  v.  Young  (Iowa, 
E.  Rep.  632.     It  need  not  be  shown     1896),  65  N.  W.  Rep.  160. 


540  CRIMINAL    EVIDENCE.  §  483 

gone  to  the  house  for  such  purpose  is  always  competent, 
though  not  indispensable,  for  any  witness  having  a  knowledge 
of  the  circumstances  may  relate  what  he  knows.  And  the  com- 
mission of  an  act  of  prostitution  may  be  inferred  from  circum- 
stances that  would  ordinarily  justify  an  inference  of  sexual  in- 
tercourse in  a  trial  for  adultery  or  fornication. 

In  a  prosecution  for  keeping  a  house  of  ill  fame,  evidence 
that  some  of  the  inmates  were  women  of  ill  fame  or  reputed  to 
be  common  prostitutes  is  admissible,1  and  it  seems  that  the 
character  of  the  house  may  be  inferred  from  the  reputation  of 
those  who  resort  there  without  direct  proof  of  disorderly  acts  or 
proof  of  a  knowledge  by  the  defendant  of  the  purpose  of  their 
coming.2 

Evidence  is  always  relevant  which  tends  to  show  the  disor- 
derly, lewd  or  boisterous  actions  of  the  occupants,  inmates  and 
frequenters  of  the  house ;  and  the  noise  and  uproar  which 
were  observed  to  proceed  therefrom.  The  character  of  the 
house,  and  the  purpose  for  which  it  is  used,  are  questions  for 
the  jury. 

A  person  may  be  convicted  of  keeping3  a  disorderly  house, 
though  no  direct  evidence  is  offered  to  show  he  had  power 
to  suppress  the  disorder;  or  that  he  took  part  therein. 
Whether  the  bad  character  of  the  defendant  for  chastity  is 
admissible,  depends  largely  upon  the  purpose  with  which  the 
disorderly  house  is  kept.  If  it  is  a  bawdy  house,  the  previous 
unchastity  of  the  accused  and  of  the  inmates  is  relevant,4  oth- 
erwise not.5 

§  483.    Dueling — Sending  a  challenge  to  fight  a  duel. — The 

act  of  participating  in  a  duel,  either  as  a  principal,  second  or 
spectator  is  merely  a  misdemeanor,  unless   one  of  the  princi- 

1  People  v.  Russell  (Mich.,  1896),  67  1099;  Callaghan  v.  State  (Tex.,  1897), 

N.  W.  Rep.  1099;  State  v.  Plant,  67  38  S.  W.  Rep.  188. 

Vt.  454;  State  v.  Bresland,  59  Minn.  "State  v.  Schaffer,  71  Iowa  704,  39 

281.  N.  W.  Rep.  89. 

2Weideman  v.   State,   4  Ind.  App.  4  Betts  v.  State,  93  Ind.  375;  Whit- 

397,  30  N.  E.  Rep.  920.     Cf.  People  v.  lock  v.  State,  4  Ind.  App.  432,  30  N.  E. 

Russell  (Mich.,  1896),  67  N.  W.  Rep.  Rep.  934. 

5Gamel  v.  State,  21  Tex.  App.  357. 


§  484         CRIMES  AGAINST  PUBLIC  POLICY,   PEACE,  HEALTH.  541 

pals  is  slain,  in  which  case  all  participants  are  guilty  of  mur- 
der.1 Where  one  is  indicted  for  taking  part  in  a  duel,  it  is  not 
absolutely  necessary  to  allege  and  prove  the  actual  sending  of  a 
challenge,  either  spoken  or  written.  If,  however,  it  is  alleged 
that  a  written  challenge  was  sent,  it  will  be  necessary  to  prove 
it  substantially  as  alleged,  and,  a  fortiori,  this  is  the  case  where 
the  indictment  is  merely  for  sending  the  challenge.2  The 
written  challenge  must  be  proved  by  producing  it  as  pri- 
mary evidence,  or  by  secondary  evidence,  after  sufficiently 
accounting  for  its  absence.  If  the  challenge  is  set  out  at  full 
length  in  the  indictment,  a  failure  to  prove  it  in  some  slight 
particular  is  not  material.3  The  meaning  of  the  writing  pur- 
porting to  be  a  challenge  and  the  intent  of  the  sender  are  for  the 
jury.  Whether  it  was  intended  for  a  deliberate  challenge  to 
mortal  combat  or  was  merely  a  foolish  and  idle  boast,  or  the 
meaningless  outpouring  of  irrepressible  passion,  is  for  them  to 
determine.4  As  all  who  participate  in  any  capacity  in  the  duel 
are  accomplices,  the  declarations  of  any  one  of  them,  uttered  in 
furtherance  of  the  common  undertaking,  are  admissible  against 
any  or  all  the  others.5 

§  484.  Carrying  concealed  weapons — How  concealment  may 
be  shown — Intent. — To  protect  individuals  against  sudden  and 
deadly  violence,  inflicted  with  weapons  concealed  about  or  con- 
veniently near  the  person,  whether  used  on  sudden  impulse  or 
deliberately,  statutes  have  been  passed  forbidding  the  carry- 
ing of  concealed  weapons.  Though  the  open  carrying  of  un- 
usual and  dangerous  weapons  was  an  offense  at  common  law, 
because  it  tended  to  terrify  and  alarm  peaceable  persons,6  evi- 

U  Bl.  Com.  199,  145;  2  Bish.  Cr.  L.  Car.)  243;   Com.  v.  Boott,  Thatcher 

310-315 ;  1  Russ.  Cr.  443 ;  2  Chitty  Cr.  Cr.  Cas.  390. 
Law  728,  848.  64B1.  Com.  149;   State  v.  Huntly, 

2  Com.  v.  Hooper,  Thatcher  C.  C.  3  Ired.  (N.  Car.)  L.  418,  421.      It  is 
400.                         •  sometimes  by  statute  made  a  misde- 

3  State  v.  Farrier,  1  Hawks  (N.  Car.)  meanor  to  point  a  fire-arm  at  another 
487.  person,  whether  the  weapon  be  loaded 

4  Ivey  v.  State,  23  Ga.  576.  or  not.  Davenport  v.  State,  112  Ala.  40, 

5  State    v.    Dupont,   2  McCord   (S.  20  So.   Rep.   971;  Sturgeon  v.   Com. 
Car.)  334;  State  v.  Taylor,  3  Brev.  (S.  (Ky.,  1897),  37  S.  W.  Rep.  679. 


542 


CRIMINAL    EVIDENCE. 


§484 


dence  is  always  admissible,  under  these  statutes,  to  show  that 
the  weapon,  though  carried,  was  not  concealed  on  the  occasion 
charged;1  but  not  that  the  accused  was  generally  in  the  habit 
of  carrying  weapons  on  his  person,  openly  exposed  to  view.2 
The  concealment  of  the  weapon,  with  an  intent  to  produce  the 
impression  of  being  unarmed,  must  be  shown  affirmatively.3 

If  concealed,  the  jury  may  infer  that  the  weapon,  if  a  pistol, 
was  loaded,  and  was  worn  as  a  weapon.  This  is  a  presump- 
tion of  fact,  not  of  law,  and  is  rebuttable.4  That  the  weapon 
was  so  hidden  that  it  could  not  possibly  be  seen,  in  whatever 
posture  the  accused  might  be,  need  not  be  proved.  If  it  was 
not  visible  to  those  meeting  him  in  the  customary  and  ordi- 
nary associations  of  social  and  commercial  intercourse,  the 
jury  will  be  justified  in  finding  that  it  was  concealed.5  Hence, 
proof  that  the  weapon  was  carried  in  a  locked  satchel,6  in  a 
wagon  box  on  which  the  defendant  was  seated,7  in  the  pocket,8 


1  Stockdale  v.  State,  32  Ga.  225,  227 ; 
State  v.  Roten,  86  N.  Car.  701,  703; 
Smith  v.  State,  69  Ind.  140-143 ;  Plum- 
mer  v.  State,  135  Ind.  308,  318. 

2  Washington  v.  State,  36  Ga*  242, 
244. 

3  State  v.  Pigford,  117  N.  Car.  748 
State  v.  Gilbert,  87  N.  Car.  527,  528 
Ridenour  v.  State,  65  Ind.  411,  413 
Burst  v.  State,  89  Ind.   133;   Carr  v. 
State,  34  Ark.  448,  450 ;  State  v.  John- 
son, 16  S.  Car.  187. 

4  Carr  v.  State,  34  Ark.  448,  450. 

5  Smith  v.  State,  96  Ala.  66,  68,  11 
So.  Rep.  71 ;  State  v.  Bias,  37  La.  An. 
259;  Killet  v.  State,  32  Ga.  292,  294; 
Sutton  v.  State,  12  Fla.  135.  Under 
the  rule  that  as  between  witnesses 
having  equal  opportunities  of  observa- 
tion, the  positive  testimony  of  one 
that  an  event  happened  is  entitled  to 
more  weight  than  the  evidence  of  an- 
other that,  though  present,  he  did  not 
see  it;  a  conviction  upon  the  testi- 
mony of  one  who  swears  he  saw  the 
weapon  will  be  sustained,  though  an- 


other swears  he  looked  attentively 
but  did  not.  Fitzgerald  v.  State,  12  Ga. 
213,  216;  but  contra,  Haskew  v.  State, 
7  Tex.  App.  107;  Underhill  on  Ev., 
§  385.  The  jury  may,  in  weighing  the 
testimony  of  a  witness  who  says  that 
he  did  not  see  the  weapon,  consider 
what  opportunity  he  had  to  see  it  in 
connection  with  all  the  evidence. 
Newell  v.  State,  109  Ala.  5, 19  So.  Rep. 
511.  Cf.,  also,  Howe  v.  State,  110 
Ala.  54,  20  So.  Rep.  451.  The  witness 
will  be  permitted  to  state  that  he  saw 
"something  that  looked  like  a  pistol" 
in  the  pocket  of  defendant.  May- 
berry  v.  State,  107  Ala.  64,  18  So.  Rep. 
219. 

6  Warren  v.  State,  94  Ala.  79,  10  So. 
Rep.  838;  Com.  v.  Sturgeon  (Ky., 
1897),  37  S.  W.  Rep.  680. 

7  Barnes  v.  State,  89  Ga.  316,  318, 15 
S.  E.  Rep.  313. 

8  Scott  v.  State,  94  Ala.  80,  81,  10 
So.  Rep.  505.  If  a  weapon  was  seen 
in  the  defendant's  hand  a  few  min- 
utes after  he  had  made  a  manual  mo- 


§  484        CRIMES  AGAINST  PUBLIC  POLICY,  PEACE,  HEALTH.  543 

in  a  scabbard,1  in  a  basket  on  one's  arm,2  or  standing  nearby  in  a 
railroad  car,3  not  as  a  means  of  transportation,  but  for  more  con- 
venient access  and  use,  is  admissible,  and  will  sustain  a  convic- 
tion.4 Evidence  that  the  defendant,  when  arrested  for  another 
offense  which  is  not  proved,  voluntarily  surrendered  a  weapon, 
is  admissible  as  a  giwm-confession  of  concealment,  and  will 
alone  sustain  a  conviction.5  Evidence  that  he  threatened  a 
man  with  a  weapon,  or  had  one  in  his  possession  shortly  be- 
fore the  act  charged,  is  admissible.6 

The  accused  may  show  that  the  concealment  involved  no 
criminal  intent.  He  may  prove  that  the  weapon  was  not  con- 
cealed or  carried  as  arms,7  but  for  the  purpose  of  having  it 
cleaned,8  or  repaired,9  or  returning  it  to  its  owner,10  or  shooting 
at  a  mark,"  or  that  he  had  found  it,12  or  bought  it  to  sell  again,18 
and  was  carrying  it  home,  to  negative  the  criminal  intent.14 


tion  towards  his  pocket,  concealment 
in  the  pocket  may  be  inferred.  State 
v.  Livesay,  30  Mo.  App.  633,  636. 

1  Barton  v.  State,  7  Baxt.  (Tenn.) 
105;  Williams  v.  Com.  (Ky.,  1897),  37 
S.  W.  Rep.  680. 

2  Boles  v.  State,  86  Ga.  255,  257. 
*  Diffey  v.  State,  86  Ala.  66,  67. 

4  State  v.  McManus,  89  N.  Car.  555. 

5  Terry  v.  State,  90  Ala.  635,  636. 
A  person  under  arrest  for  any  crime 
may  be  searched  for  concealed  weap- 
ons and  disarmed.  The  facts  thus  as- 
certained may  be  proved  against  him 
on  his  trial  for  carrying  such  weapons, 
and  may  be  sufficient  for  his  convic- 
tion. His  constitutional  rights  are 
not  infringed  thereby,  nor  is  he  re- 
quired to  furnish  evidence  against 
himself.  Chastang  v.  State,  83  Ala. 
29,  30. 

6  O'Neal  v.  State,  32  Tex.  Cr.  App. 
42,  44,  22  S.  W.  Rep.  25;  Dean  v. 
State,  98  Ala.  71,  13  So.  Rep.  318; 
Etress  v.  State,  88  Ala.  191,  7  So. 
Rep.  49. 

7  Page  ».  State,  3  Heisk.  (Tenn.)  198 


note,  holding,  also,  that  proof  of  a 
single  act  of  carrying  a  weapon  will 
sustain  a  conviction. 

8Boisseau  v.  State  (Tex.,  1890),  15 
S.  W.  Rep.  118. 

9  Pressler  v.  State,  19  Tex.  App.  52. 

10  State  v.  Brodnax,  91  N.  Car.  543, 
544;  State  v.  Roberts,  39  Mo.  App. 
47,  48. 

11  State  v.  Murray,  39  Mo.  App.  127, 
130. 

12  Man  gum  v.  State,  15  Tex.  App. 
362,  363. 

13  State  v.  Gilbert,  87  N.  Car.  527, 529. 
"State  v.  Harrison,  93  N.  Car.  605, 

607;  Carr  v.  State,  34  Ark.  448,  450; 
State  v.  Chippey,  9  Houst.  (Del.)  583; 
Christian  v.  State,  37  Tex.  475;  but 
contra,  Cutsinger  v.  Com.,  7  Bush 
(Ky.)  392,  393;  State  v.  Martin,  31 
La.  An.  849;  Walls  v.  State,  7  Blackf. 
(Ind.)  572,  573;  Goldsmith  v.  State 
(Ga.,  1896),  25  S.  E.  Rep.  624;  State  v. 
Woodfin,  87  N.  Car.  526,  527,  holding 
the  intention  in  concealment  imma- 
terial. 


544  JRIMINAL    EVIDENCE.  §  485 

§  485.  Apprehension  of  danger  as  a  defense. — The  burden 
is  on  the  defendant  to  prove,  as  an  affirmative  defense,  that  he 
feared  bodily  harm,1  but  it  is  not  enough  for  him  to  show  ap- 
parent or  simulated  threats,  or  those  couched  in  vague  and 
general  language,2  or  made  by  a  person  who  is  under  bonds  to 
keep  the  peace,3  or  that  a  criminal,  whom  the  defendant  ar- 
rested, was  known  to  be  armed,4  or  that  the  accused  feared  a 
savage  dog.5 

Evidence  that  many  lawless  men  lived  near  the  defendant,6 
that  he  had  been  shot  at  two  years  before,7  and  that  he  had 
been  advised  to  go  armed,  is  inadmissible.8  The  fact  that  the 
accused  was  expressly  threatened  by  name  by  an  armed  man 
with  whom  he  had  quarreled,9  and,  a  fortiori,  that  his  life  is 
in  imminent  danger,10  is  enough.  He  need  not  prove  that  an 
attack  was  anticipated  by  him  at  any  particular  date,11  or  place,12 
to  justify  his  belief  that  he  is  in  immediate  danger.  To  estab- 
lish this  defense,  the  accused  must  show  facts  from  which  the 
jury  may  infer  that  his  purpose  in  carrying  a  weapon  was  de- 
fense against  an  attack  which  he  had  reason  to  apprehend. 
The  conduct  of  the  accused  and  of  the  prosecuting  witness,  their 
altercations  and  rencontres,  specific  threats,  reported  to  the  de- 

1  Skeen  v.  State,  34  Tex.  Cr.  Rep.  42,   44.     Evidence  that  lawless  men 

308,  30  S.  W.  Rep.  554 ;   State  v.  Live-  who  had  once  ill  used  and  threatened 

say,   30  Mo.  App.  633,  637.  the  defendant  were  prowling  about, 

2Strother  v.  State  (Miss.,  1897),  21  armed,  and  without  employment,    is 

So.  Rep.  147;  State  v.  Speller,  86  N.  relevant.     Hardin   v.    State,    63   Ala. 

Car.  697,  699 ;  Coffee  v.  State,  4  Lea  38,  40. 

(Tenn.)  245,  246;  Shorter  v.  State,  63  7  Hopkins  v.  Com.,    3  Bush  (Ky.) 

Ala. 129, 132.  Athreat,if  recent,though  480. 

unaccompanied  by  violence,  is  admis-  8See   Dillingham    v.    State    (Tex., 

sible;  but  if  enough  time  has  elapsed  1896),  32  S.  W.  Rep.  771 ;  Brownleew. 

to  give  the  person  threatened  an  op-  State  (Tex.,  1896),  32  S.  W.  Rep.  1043; 

portunity  to  seek  legal  protection,  it  Com.  v.  Murphy,  166  Mass.  171,  44  N. 

is  inadmissible.  State  v.  Workman,  35  E.  Rep.  138. 

W.  Va.  367,  375.  9  Dooley  v.  State,  89  Ala.  90,  91. 

3  O'Neal  v.  State,  32  Tex.  Cr.  App.  10  Coleman   v.  State,  28  Tex.   App. 
42,  45,  22  S.  W.  Rep.  25.  173,174. 

4  Reach  v.  State,  94  Ala.  113.  ll  Sudduth  v.  State,  70  Miss.  250,  11 
6  State  v.  Barnett,  34  W.  Va.  74,  75,     So  Rep.  680. 

76,  11  S.  E.  Rep.  735.  12  Bailev  v.  Com.,  11   Bush   (Ky.) 

6  O'Neal  v.  State,  32  Tex.  Cr.  App.     688,  692. 


§486         CRIMES  AGAINST  PUBLIC  POLICY,    PEACK,    HEALTH.  545 


fendant  as  made,  though  not  made  in  fact,  hostile  demonstra- 
tions or  actual  preparations  for  an  assault,  are  all  admissible 
to  establish  the  defense  of  an  apprehended  attack.1 

§  ISO.    Character  of  the  defendant  as  an  officer  or  traveler. — 

The  peaceahle  character  of  the  accused  is  relevant  to  determine 
his  motives  and  purpose  in  carrying  the  weapon.  So  it  is 
sometimes  provided  by  statute  that  he  must  be  acquitted  if  he 
shall  prove  satisfactorily  that  he  is  a  quiet  and  peaceable  per- 
son, of  good  character  in  the  community,  and  that  he  carried 
the  weapon  because  he  believed  himself  to  be  in  great  bodily 
danger.  The  official  character  of  the  defendant  is  often  by 
statute  relevant  as  a  valid  defense,  and  in  such  a  case  evidence 
is  admissible,2  to  show  that  he  is  a  sheriff,  marshal,  deputy 
marshal,3  or  other  officer  charged  with  the  duty  of  preserving 
the  peace,  or  serving  judicial  process,*  or  a  mail  carrier.5  The 
officer  must  show  that  he  was  actually  engaged  in  executing 
process,6  or  searching  for  or  arresting  a  criminal,7  and  of  these 
facts  the  existence  of  process  is  evidence.  The  process  itself 
or  a  certified  copy  is  the  best  evidence  of  its  existence,  and 
must  be  produced.8 

A  written  appointment  offered  to  prove  official  character 
need  not  be  technically  correct  if  it  was  sufficient  to  cause  the 
defendant  to  believe  that  he  was  exempt.9  Persons  traveling- 
are  sometimes  privileged  to  carry  concealed  weapons.  Wheth- 
er a  person  is  a  traveler  is  usually  for  the  jury  to  determine 
upon  all  the  facts,10  as,  for  example,  quitting  the  neighborhood 

6 Miller  v.   State,  6   Baxt.   (Tenn.) 
449,  450. 


1  Shorter  v.  State,  63  Ala.  129,  133, 
citing  Baker  v.  State,  49  Ala.  350. 

2  Including  the  declarations  of  the 
defendant,  made  while  carrying  the 
weapon,  as  a  part  of  the  res  gestae. 
Irvine  v.  State,  18  Tex.  App.  51,  52. 

3  In  re  Lee,  46  Fed.  Rep.  59,  62,  63 

4  State  v.   Williams,   72   Miss.  992 
Irvine  v.  State,  18  Tex.    App.  51,  53 
Snell  v.  State,  4  Tex.  App.  171,  172; 
Carmichael  v.  State,  11  Tex.  App.  27, 
28. 

5Lott  v.  State,  122  Ind.  393,  395. 
35— Cr.  Ev. 


'State  v.  Wisdom,  84  Mo.  177,  190. 

8Beasley  v.  State,  5  Lea  (Tenn.) 
705,  706. 

9Lyle  v.  State,  21  Tex.  App.  153. 
Evidence  that  he  thought  he  was  still 
an  officer  is  inadmissible,  if  it  clearly 
appears  that  his  term  had  expired. 
O'Neal  v.  State,  32  Tex.  Cr.  Rep.  42, 
22  S.  W.  Rep.  25. 

10  Lawson  ».  State  (Tex.,  1895).  31  S. 
W.  Rep.  645 ;  Blackwell  v.  State  (Tex., 


546  CRIMINAL  EVIDENCE.  §  487 

of  one's  acquaintances  and  friends,  going  among  strangers,  the 
distance  covered  and  the  purpose  and  objects  contemplated  in 
going,  loitering  or  returning.  These  facts  are,  therefore,  ad- 
missible in  evidence.1  The  presumption  is  that  the  accused  is 
not  a  traveler  and  the  burden  of  proof  is  on  him  to  show  this 
excuse.2 

§  487.  Forcible  entry  and  detainer. — This  is  often  by  stat- 
ute made  a  crime  and  consists  of  forcibly  taking  or  keeping 
possession  of  lands  and  tenements  by  menaces,  force  and  arms, 
and  without  authority  of  law.3 

Evidence  to  show  title  in  the  defendant  or  in  some  person  for 
whom  he  is  acting  is  irrelevant.4  The  object  of  the  statute  is 
not  to  determine  to  whom  the  premises  belong  of  right,  but  to 
discourage  a  resort  to  violence  and  prevent  a  breach  of  the 
peace. 

But  it  may  be  shown  that  the  accused  took  possession  by  vir- 
tue of  a  judicial  writ  or  order,  regular  upon  its  face,  issuing 
from  a  court  of  competent  jurisdiction.  It  can  not  be  proved 
collaterally  that  the  process  is  void.5 

Evidence  tending  to  show  the  employment  of  force  by  the 
accused  is  always  relevant.  And  to  sustain  a  conviction  such 
high-handed  proceedings,  or  such  a  show  of  force  must  be 
proved  as  overawed  and  intimidated  the  injured  party,  and 
either  deterred  him  from  defending  his  possession,  or  coerced 
him  into  surrendering  it.6     If  the  evidence  shows  the  taking 

1895),  31  S.W.  Rep.  380;  Price*.  State,  2  Wiley  v.  State,  52  Ind.  516,   519; 

34  Tex.  Cr.  Rep.  102, 29  S.W.  Rep.  473 ;  Brownlee  v.  State  (Tex.,  1896),  32  S. 

Dillingham  v.  State  (Tex.,  1896),  32  S.  W.  Rep.  1043.     See  ante,  p.  34,  note  2. 

W.  Rep.   771;    Hathcote  v.  State,  55  s  "  The  entry  now  allowed  by  law  is 

Ark.  181,  184;  Impson  v.  State  (Tex.,  a  peaceable  one;    that   forbidden  is 

1892),  19  S.  W.  Rep.  677;  Wilson  v.  such  as  is  carried  on  and  maintained 

State,  68  Ala.  41 ;    Lott  v.  State,  122  by  force,  by  violence  and  by  unusual 

Ind.  393,  395;  Stiewell  v.  State  (Ark.,  weapons."    4  Bl.  Com.  148. 

1890),  12  S.  W.  Rep.  1014.  4  Lasserot  v.  Gamble  (Cal.,  1897),  46 

1  Davis  v.  State,  45  Ark.  359,   361;  Pac.  Rep.  917;  Vess  v.  State,  93  Ind. 

Wilson  v.  State,  68  Ala.  41 ;  Carr  v.  211,  215. 

State,  34  Ark.  448,  449 ;  Burst  v.  State,  5  Vess  v.  State,  93  Ind.  211,  215. 

89  Ind.  133,  135.  6Strong  v.  State,  105  Ind.  1,  4. 


§  488         CRIMES  AGAINST  PUBLIC  POLICY,   PEACE,   HEALTH.  547 

possession  was  peaceable  and  with  the  consent  of  all  parties  the 
accused  must  be  acquitted.1 

§  488.  Affray. — This  offense  has  been  defined  as  the  fighting 
of  two  or  more  persons  in  some  public  place  to  the  terror  of  his 
majesty's  subjects.2  If  the  fighting  be  private  it  is  not  an  af- 
fray but  an  assault.  The  state  must  prove  as  elements  of  the 
crime  :  First,  the  fighting.  Second,  the  fact  that  it  was  in  a 
public  place.  Third,  that  it  was  in  terror  of  the  king's  sub- 
jects, and,  fourth,  that  two  or  more  persons  were  engaged  in  it.3 
Evidence  of  any  fact  which  shows  or  tends  to  show  an  assault 
and  battery  by  one  person  on  another  is  admissible  to  prove 
the  fighting.  The  declarations  of  any  one  implicated,  uttered 
during  the  affray  or  which  are  otherwise  a  part  of  the  res  geslse, 
are  admissible  against  any  of  the  others.4  The  accused  may 
always  prove  in  justification  that  he  was  attacked  and  that  he 
fought  to  defend  himself.  But  he  can  not  put  in  evidence  his 
belief  that  he  was  in  danger  to  sustain  this  defense.  The 
burden  of  proof  is  on  him  to  show  that  he  fought  in  self-de- 
fense.5 It  must  also  be  proved  that  the  fighting  was  in  public.6 

§  489.  Riot. — Where  three  or  more  actually  do  an  unlawful 
act  of  violence,  either  with  or  without  a  common  cause  or 
quarrel,  as,  if  they  beat  a  man,  or  do  other  unlawful  act  with 
force,  or  even  a  lawful  act,  as  removing  a  nuisance,  in  a  vio- 
lent and  tumultuous  manner.7     An  unlawful  assembly  must  be 

1  Strong  v.  State,  105  Ind.  1,  5.  Modern  115,  the  court,  on  p.  117,  said : 

24  Bl.  Com.  145.  "The  books  are  obscure  in  the  defini- 

3Roscoe's  Crim.  Ev.  277.  tion  of  riot;  it  is  not  necessary  that 

4  State  v.  Harrell,  107  N.  Car.  944,  they  assembled  for  that  purpose,  but 
12  S.  E.  Rep.  439.  there  must  be  an  unlawful  assembly  ; 

5  States.  Barringer,  114  N.  Car.  840,  such  an  act  as  will  make  a  trespass 
19  S.  E.  Rep.  275.  will  make  a  riot.    If  a  number  of  men 

6Skains  v.  State,  21  Ala.  218;  Car-  assemble  with  arms,  in  terrorem  populi, 

wile  r.  State,  35  Ala.  392;   Taylor  v.  it  is  a  riot  though  no  act  is  done.     If 

State,  22  Ala.  15;    State  v.  Heflin,  8  three  come  out  of  an  alehouse  and  go 

Humphrey  (Tenn.)  84.  armed   it  is   a   riot.     Though  a  man 

74  Bl.   Com.  146.;   Whitley  r.  State,  may  ride  with  arms,  he  can  not  take 

66    Ga.   656.     In    Reg.    v.  Soley,  11  two   with  him  to  defend  him,   even 


r,48 


CRIMINAL    EVIDENCE. 


§490 


proved.  Then  whatever  act  will  constitute  a  trespass  may  sub- 
stantiate a  charge  of  riot.1  The  defendant's  connection  with 
the  unlawful  assembly  must  be  shown  by  evidence  satisfac- 
tory to  the  jury.  As  soon  as  it  is  proved,  he  will  become 
responsible  for  all  the  acts  and  declarations  of  the  others  made 
during  the  progress  of  the  riot.  If  during  the  riot  some  one  is 
killed,  it  is  not  necessary  to  prove  that  he  struck  the  fatal  blow. 
It  is  sufficient  to  prove  that  some  one  implicated  in  the  unlaw- 
ful assembly  struck  the  blow,  though  it  may  not  appear  who  it 
was.e 

§  490.  Conspiracy. — When  two  or  more  persons  unite  to 
execute  a  purpose  to  injure  or  destroy  the  life,  or  the  property, 
or  personal  rights  of  another,  a  conspiracy  exists.  The  mere 
combination  of  persons  to  do  a  criminal  act  is  a  crime,  even 
though  the  object  of  the  combination  is  not  consummated. 
Here  the  gist  of  the  crime  is  the  conspiracy,  and,  both  at  com- 
mon law  and  under  statute,  any  participant  may  be  indicted 
for  his  share  in  the  illicit  transaction.     But  usually  the  proof 


though  his  life  is  threatened,  for  he  is 
in  the  protection  of  the  law  which  is 
sufficient  for  his  defense." 

ll'A  riot  is  a  common  law  offense. 
It  is  the  tumultuous  disturbance  of  the 
peace  by  three  or  more  persons  to- 
gether, of  their  own  authority  with  an 
intent  mutually  to  assist  one  another, 
against  any  who  shall  oppose  them, 
in  the  execution  of  some  enterprise  of 
a  private  nature,  and  afterwards  actu- 
ally executing  it  in  a  violent  and  tur- 
bulent manner  to  the  terror  of  the 
people,  whether  the  act  intended  were 
of  itself  lawful  or  the  reverse."  State 
v.  Russell,  45  N.  H.  83,  84. 

2  State  v.  Jenkins,  14  Rich.  (S.  Car.) 
215.  See,  generally,  Hawk.  P.  C.  B. 
I.  65;  5  Burns  Justice  14;  2  Chitty  Cr. 
Law  488;  3  Greenl.  Ev.,  §216;  Whar- 
ton Am.  Cr.  L.  722;  Roscoe  Cr.  Ev., 
882 ;  and  State  v.  Renton,  15  N.  H.  169, 
172.     "The  law  does  not  discriminate 


between  relative  degrees  of  violence,; 
every  one  who  participates  is  responsi- 
ble for  what  has  taken  place.  It  is 
not  necessary  that  a  party  should  com- 
mit personal  violence ;  being  armed 
with  offensive  weapons,  or  making 
use  of  threatening  speeches  or  turbu- 
lent gestures ;  or  indeed  any  act  of  as- 
sistance or  encouragement  is  sufficient 
to  make  him  a  principal."  "Where 
many  individuals  are  acting  separately 
or  in  small  parties  distinct  from  each 
other  at  different  times  and  at  differ- 
ent places,  but  manifestly  for  the 
same  purpose,  as  to  break  into  a 
theatre,  or  to  injure  by  the  throwing 
of  stones,  and  missiles,  or  to  resist  or 
attack  those  who  are  there  in  author- 
ity to  preserve  the  peace,  it  is  not  a 
series  of  affrays  but  a  single  riot." 
People  v.  Judson,  11  Daly  (N.  Y.)  1, 
17,  83,  84. 


§491         CRIMES  AGAINST  PUBLIC  POLICY,    PEACE,    HEALTH.  549 

of  a  conspiracy  is  merely  incidental  to  proving  some  other 
crime  in  which  several  have  taken  part.  Thus,  where  a  man 
has  been  killed  as  the  result  of  a  preconcerted  assault  upon  him 
by  several  persons,  it  becomes  necessary  to  prove  a  conspiracy 
to  show  the  relations  of  the  accused  persons  to  one  another. 
But  generally  it  is  not  material  that  the  plan  which  was  car- 
ried out  differs  widely  from  the  original  plan,  nor  will  it  be 
required  to  show  the  existence  of  any  previous  plan  if,  from 
the  evidence,  it  seems  clear  that  there  had  been  negotiations  to 
the  same  end.1 

§  491.  Circumstantial  evidence. — Direct  evidence  is  not  es- 
sential to  prove  the  conspiracy.  It  need  not  be  shown  that  the 
parties  actually  came  together  and  agreed  in  express  terms  to 
enter  in  and  pursue  a  common  design.2  The  existence  of  the 
assent  of  minds  which  is  involved  in  a  conspiracy  may  be,  and, 
from  the  secrecy  of  the  crime,  usually  must  be,  inferred  by  the 
jury  from  proof  of  facts  and  circumstances  which,  taken  to- 
gether, apparently  indicate  that  they  are  merely  parts  of  some 
complete  whole.3  If  it  is  proved  that  two  or  more  persons 
aimed  by  their  acts  towards  the  accomplishment  of  the  same 
unlawful  object,  each  doing  a  part,  so  that  their  acts,  though 
apparently  independent,  were  in  fact  connected  and  co-opera- 
tive, indicating  a  closeness  of  personal  association  and  a  con- 
currence of  sentiment,  a  conspiracy  may  be  inferred  though  no 
actual  meeting  among  them  to  concert  means  is  proved.4  Evi- 
dence of  actual  participation,  rather  than  of  passive  acquies- 
cence, is  desirable.     But  proof  of  acquiescence  in,  or  consent 

1  Grogan  v.  State,  63  Miss.  147,  152;  derson,  92  N.  Car.  732,  747;  Kelley  v. 
Spies  v.  People,  122  111.1,229;  Com.  People,  55  N.  Y.  565,  576;  United 
o.  Waite,  11  Allen  (Mass.)  264.  States  v.  Graff,  14  Blatehf.  C.  C.  381. 

2  United  States  v.  Babcock,  3  Dill  4  Spies  v.  People,  122  111.  1,  101-158; 
C.  C.  581,  585.  Archer  v.  State,  106   Ind.  426.     Evi- 

3  Hunter  v.  State,  112  Ala.  77,  21  So.  dence  to  show  that  the  conspirators 
Rep.  65;  McKee  v.  State,  111  Ind.  378,  were  acquainted  with  one  another, 
383;  Spies  v.  People,  122  111.  1,  101-  and  were  endeavoring  to  meet  each 
158;  United  States  v.  Sacia,  2  Fed.  other,  is  relevant.  Reinhold  v.  State, 
Rep.  754,  758 ;   Mussel  Slough  Case,  5  130  Ind.  467,  470. 

Fed.  Rep.  680,  683,  684;   State  v.  An- 


550  CRIMINAL  EVIDENCE.  §  492 

to,  the  actions  of  others  is  relevant  to  show  the  criminal  inten- 
tion of  the  passive  party,  and  generally  the  smallest  degree  of 
consent  or  collusion  among  parties  lets  in  the  act  or  words  of 
one  against  the  others.1  The  details  of  the  conspiracy  need 
not  be  proved.  If  a  community  of  purpose  among  the  par- 
ties to  do  some  criminal  act  or  acts  is  shown,  it  is  not  necessary 
that  the  acts  which  are  charged,  or  of  which  evidence  has  been 
given,  were  specifically  contemplated  by  them  or  included  in 
the  original  design.  In  other  words,  if  some  general  commu- 
nity of  interest  and  purpose  is  shown,  the  declarations  are  ad- 
missible, though  a  conspiracy  to  commit  the  offense  in  question 
is  not  proved.2 

§  492.  Admissibility  of  acts  and  declarations  of  co-conspira- 
tors.— If  a  conspiracy  is  proyedprima  facie  the  acts  or  the  declara- 
tions of  any  conspirator  done  in  its  prosecution  and  furtherance, 
or  which  form  a  part  of  the  res  gestae  of  any  act  designed  to  ad- 
vance the  object  of  the  conspiracy,  which  is  already  in  evidence, 
are  admissible  against  any  or  all  of  the  conspirators.3  The 
principle  at  the  basis  of  this  rule  is  that  which  regulates  the 
competency  of  the  admissions  of  partners  against  each  other.4 
When  men  are  associated  for  a  common  purpose,  and  with  a 
common  object  in  view,  the  law,  presuming  that  the  benefits, 
if  any,  which  may  ensue  from   their   accomplishment  will  be 

1  State  v.  Anderson,  92  N.  Car.  732,  419;  Williams  v." State,  47  Ind.  568, 
737,  747.  572;  State  v.  Carson,  36  S.  Car.  524, 

2  State  v.  Anderson,  92  N.  Car.  732,  15  S.  E.  Rep.  588;  State  v.  Green,  40 
737,  747;  State  v.  Morton,  27  Vt.  310.  S.  Car.  328,  18  S.  E.  Rep.  933;  People 

3  People  v.  McKane,  143  N.  Y.  455,  v.  Collins,  64  Cal.  293 ;  Priest  v.  State, 
470;  State  v.  Ford,  37  La.  An.  443;  10  Neb.  393,  399;  State  v.  Weasel,  30 
Card  v.  State,  109  Ind.  415,  419,  422;  La.  An.  919;  State  v.  Thibeau,  30  Vt. 
Williams  v.  State,  81  Ala.  1;  Spies  v.  100,  104;  Bennett  v.  State,  62  Ark. 
People,  122  111.  1,  224,  228-9;  State  v.  516,  36  S.  W.  Rep.  947;  State  v.  Lewis 
Glidden,55  Conn.  46 ;  Com.  v.  O'Brien,  (Iowa,  1896),  65  N.  W.  Rep.  295 ;  State 
140  Pa.  St.  555,  561 ;  Horton  v.  State,  v.  Byers,  16  Mont.  565 ;  Hunter  v. 
66  Ga.  690,  693 ;  State  v.  James,  34  S.  State,  112  Ala.  77,  21  So.  Rep.  65 ; 
Car.  49,  53,  12  S.  E.  Rep.  657;  People  Com.  v.  Hunton  (Mass.,  1897),  46  N. 
v.  Collins,  64  Cal.  293,  295;  McKenzie  E.  Rep.  404. 

v.  State,  32  Tex.  Cr.  Rep.  568,  25  S.  W.        4  Underbill  on  Ev.,  §  68. 
Rep.  426;  Com.  v.   Brown,   14  Gray 


§  493         CRIMES  AGAINST  PUBLIC  POLICY,  PEACE,   HEALTH.  551 

shared  by  all,  impresses  upon  the  conspirators  or  partners,  col- 
lectively, the  attribute  of  individuality  so  far  as  the  common 
design  is  concerned.  No  member  of  the  combination  will  be 
permitted  to  escape  the  consequences  of  the  actions  or  words  of 
his  associates.  But  the  acts  or  declarations,  in  order  to  be  ad- 
missible, must  have  been  made  in  furtherance  of  the  common 
design,  or  must  accompany  and  explain  such  an  act  or  decla- 
ration.1 The  fact  that  declarations  were  made  by  a  conspirator 
before  the  defendant  became  associated  with  the  conspiracy 
does  not  render  them  inadmissible  against  him.  But  his  sub- 
sequent connection  therewith  must  be  shown  and  knowledge 
of  the  existence  of  the  declarations  be  brought  home  to  him  or 
circumstances  shown  from  which  such  knowledge  and  a  ratifi- 
cation by  him  may  be  implied  or  inferred.2 

§  493.  Must  be  made  during  existence  of,  and  in  further- 
ance of,  conspiracy. — That  the  accused  was  not  present  when 
the  declaration,  which  is  introduced  against  him,  was  uttered 
by  a  fellow-conspirator,  does  not  of  necessity  render  it  incom- 
petent if  it  conforms  to  the  rule  in  other  respects.3  But  those 
declarations  only  are  admissible  which  are  made  by  a  con- 
spirator during  the  existence  of  the  conspiracy  and  in  further- 
ance of  it.  The  statements  of  a  conspirator,  made  after  the 
conspiracy  has  ceased  to  exist,  either  by  success  or  failure,  and 
which  are  merely  narrative  of  past  events  (though  in  form  a 
confession,  i.  e.,  an  admission  of  the  conspiracy),  are  not  re- 
ceivable against    a  fellow-conspirator,4  unless   the    latter  was 

1  State  v.  McGee,  81  Iowa  17,  22;  2  Lamar  v.  State,  63  Miss.  265,272; 
Long  v.  State,  13  Tex.  App.  211 ;  Hor-  Cox  v.  State,  8  Tex.  App.  254 ;  Brown- 
ton  v.  State,  66  Ga.  690,  695;  Spies  v.  ing  v.  State,  30  Miss.  656;  Avery  v. 
People,  122  111.  1;  People  v.  Stanley,  State,  10  Tex.  App.  199.  212;  Spies  v. 
47  Cal.  113,  120;  Walton  v.  State,  88  People,  122  111.  1;  United  States  v. 
Ind.  9,  15;  Card  v.  State,  109  Ind.  Babcock,  3  Dill.  C.  C.  581,  5S6. 
415,  418;  McKee  v.  State,  111  Ind.  3  State  v.  McGee,  81  Iowa  17,22,46 
378,  382 ;  State  v.  Melrose,  98  Mo.  594 ;  N.  W.  Rep.  764 ;  State  v.  Anderson,  92 
Kunde  v.  State,  22  Tex.  App.  65;  N.  Car.  732;  Hunter  v.  State  (Ala., 
People  r.  McQuade,  110  N.  Y.  284;  1897),  21  So.  Rep.  65;  Grogan  v.  State, 
State  v.  Larkin,  49  N.  H.  39;  People  63  Miss.  147,  151. 
v.  Irwin,  77  Cal.  494;  State  v.  Grant,  4  Bennett  v.  State,  62  Ark.  516,  36 
86  Iowa  216,  53  N.  W.  Rep.  120.  S.  W.  Rep.  947 ;  People  v.  Oldham,  111 


552 


CRIMINAL    EVIDENCE. 


§  494 


present  when  they  were  made  and  heard  them,  and  expressly 
or  hy  implication  acquiesced  in  them.1  On  the  other  hand, 
declarations  made  after  the  conspiracy  are  always  admissible 
against  the  declarant,  the  jury  being  instructed  to  disregard 
them  as  far  as  they  refer  to  other  persons.2  A  declaration  by 
one  conspirator  made  at  any  time  while  the  conspiracy  exists 
is  not  inadmissible  against  another  merely  because  the  offense 
for  which  the  latter  is  on  trial  preceded  it.  The  several  suc- 
cessive crimes  committed  during  the  conspiracy  are  regarded 
merely  as  the  parts  of  one  indivisible  whole.3  An  exception 
to  the  general  rule  may  be  mentioned  here.  At  common  law 
proof  of  the  guilt  of  the  principal  is  required  on  the  trial  of  a 
person  as  an  accessory  to  a  crime.  Hence  of  necessity  the 
principal's  confession,  though  in  form  a  declaration  made 
after  the  conspiracy,  is  admissible  at  the  trial  of  a  confederate 
as  an  accessory,  whether  tried  jointly  or  separately,  but  only 
to  show  the  guilt  of  the  principal  as  such.4 

§  494.    Order  of  proving  conspiracy  to  let  in  declarations. — 

The  general  rule  is  that  the  existence  of  the  conspiracy  must 
be  proved,  at  least  prima  facie,  to  the  satisfaction  of  the  judge, 
before  the  declarations  or  acts  are  admitted  in  evidence.5 
Many  authorities,  however,  hold  that  the  order  of  the  proof  is 


Cal.  648,  44  Pac.  Rep.  312;  Jenkins  v. 
State,  35  Fla.  737,  18  So.  Rep.  182; 
Schwen  v.  State  (Tex.,  1896),  35  S. 
W.  Rep.  172;  State  v.  Duffy,  124  Mo. 
1 ;  Everage  v.  State  (Ala.,  1897),  21  So. 
Rep.  404;  State  w.Tice  (Ore.,  1897),  48 
Pac.  Rep.  367 ;  Logan  v.  United  States, 
144  U.  S.  263,  309;  State  v.  Dean,  13 
Ired.  (N.  Car.)  63;  Patton  v.  State,  6 
Ohio  St.  467;  Rowland  v.  State,  45 
Ark.  132, 135 ;  State  v.  McGraw,  87  Mo. 
161,  164;  State  v.  Thibeau,  30  Vt.  100; 
State  v.  Larkin,  49  N.  H.  39;  Heine  v. 
Com.,  91  Pa.  St.  145;  Reg.  v.  Murphy, 
8C.  &P.  297,310,  311. 

1  Holden  v.  State,  18  Tex.  App.  91 ; 
Shelby  v.  Com.  (Ky.),  16  S.  W.  Rep. 
461. 


2  Rex  v.  Clewes,  4  C.  &  P.  221,  225; 
Crosby  v.  People,  137  111.  325,  334,  27 
N.  E.  Rep.  49;  People  v.  Arnold,  46 
Mich.  268,  277;  State  v.  Dodson,  16 
S.  Car.  453,  461. 

3  Card  v.  State,  109  Ind.  415,  419. 

4  United  States  v.  Hartwell,  3  Cliff. 
(U.S.)  221. 

5  Belcher  v.  State,  125  Ind.  419,  420; 
Ford  v.  State,  112  Ind.  373;  Card  v. 
State,  109  Ind.  415,  418;  Tarbox  v. 
State,  38  Ohio  St.  581,  584;  Casey  v. 
State,  37  Ark.  67,  85 ;  McGraw  v.  Com. 
(Ky.,  1893),  20  S.  W.  Rep.  279;  Amos 
v.  State,  96  Ala.  120,  125,  11  So.  Rep. 
424 ;  Horton  v.  State,  66  Ga.  690,  693. 


§  494         CRIMES  AGAINST  PUBLIC  POLICY,  PEACE,  HEALTH.  553 

discretionary  with  the  court,  and  that  the  court  may,  for  the 
sake  of  convenience,  admit  the  declarations  at  any  time  during 
the  trial  on  the  promise  to  prove  the  existence  of  the  con- 
spiracy and  the  connection  of  the  defendant  therewith  subse- 
quently.1 This  is  particularly  the  case  where  establishing  the 
conspiracy  depends  upon  proving  a  large  number  of  facts  or  a 
vast  amount  of  circumstantial  evidence  and  the  existence  of 
the  conspiracy  be  inferred  from  numerous  apparently  inde- 
pendent facts  and  circumstances.2 

1  State  v.  Mushrush  (Iowa,  1896),  66  92  N.  Car.  732,  748 ;  State  v.  McGee,  81 

N.  W.  Rep.  746;  Hall  v.  State,  31  Fla.  Iowa  17,  46  N.  W.  Rep.  764;    State 

176,  188,  189,  12  So.  Rep.  449 ;  State  v.  v.  Cardoza,  11  S.  Car.  195,  237 ;  State  v. 

Ward,   19  Nev.   297,  308,  7  Crim.  L.  Grant,  76  Mo.  236;  Hamilton  v.  People, 

Mag.  748 ;  State  v.  Grant,  86  Iowa  216,  29  Mich.  195,  197. 

53  N.  W.  Rep.  120;  Avery  v.  State,  10  2  State  v.  Winner,  17  Kan.  298,  305; 

Tex.  App.  199, 210;  State  v.  Anderson,  Spies  v.  People,  122  111.  1,  238. 


CHAPTER  XXXII. 


EVIDENCE    IN    INTERNATIONAL    AND  INTERSTATE    EXTRADITION. 


§495.   International  ex  trad  it  i  on —      §501. 
Treaties  and  statutory  regu- 
lation. 

496.  Burden  of  proof  and  amount        502. 

of  evidence  required  in  in- 
ternational and  interstate 
extradition  to  show  crimi- 
nality and  other  essential 
facts.  503. 

497.  Fugitive  character  of  the  per- 

son claimed  for  extradition. 

498.  Evidential  rules  governing  in-        504. 

terstate  extradition. 

499.  Character,  form  and  authenti- 

cation of  indictments,  etc.,        505. 
in  interstate  extradition. 

500.  Constitutional    and    statutory 

regulation  of  the  mode  of 
proving  and  effect  of  records 
of  other  states. 


General  rules  regulating  the 
taking  of  evidence  in  foreign 
extradition. 

Authentication  by  consular 
certificate  of  warrants  and 
other  papers  used  as  evi- 
dence in  international  ex- 
tradition. 

The  competency  of  certified 
copies  as  evidence  of  crim- 
inality. 

Proof  of  foreign  laws  and 
treaties  in  international  ex- 
tradition. 

Proof  of  laws  in  interstate  ex- 
tradition. 


§  495.  International  extradition — Treaties  and  statutory 
regulations. — The  demand  and  the  return  of  fugitives  from 
justice  as  between  independent  nations  and  states  are,  in  the 
absence  of  treaties  providing  for  the  reciprocal  return  of  such 
persons,  wholly  a  matter  of  international  comity.  The  law  of 
nations  imposes  no  obligation  upon  the  sovereign  state  in 
which  a  person  charged  with  crime  has  sought  an  asylum,  to 
return  him  to  the  officials  of  the  state  against  the  law  of  which 
he  has  offended.1  But  often  because  of  the  principles  of  inter- 
national comity,  as  it  is  termed,  or  in  other  words  because  of 

1  Ex  parte  McCabe,  46  Fed.  Rep.  363 ;  In  re  Cook,  49  Fed.  Rep.  833,  836. 

(554) 


§  495 


INTERNATIONAL    AND    INTERSTATE    EXTRADITION. 


555 


the  expectation  that  the  favor  granted  by  the  asylum  state 
would  be  reciprocated  by  the  authorities  of  the  state  which  de- 
mands the  return  of  the  fugitive  from  its  criminal  jurisdic- 
tion, persons  have  been  returned  in  the  absence  of  treaty  to 
meet  criminal  charges  pending  against  them  in  the  country  of 
their  domicile.1  At  the  present  time  treaties  exist  between 
the  United  States  and  nearly  all  civilized  states,  by  virtue  of 
which  all  persons  charged  with  certain  crimes  therein  speci- 
fied may  be  returned  to  the  country  whence  they  have  fled  to 
the  United  States.2 

These  treaties  provide  what  evidence  shall  be  necessary  in 
any  case  to  procure  the  extradition  of  the  accused.  The 
statutes  of  the  United  States  provide  that  all  hearings  in 
extradition  cases  shall  be  held  on  land,  in  a  room  or  office 
which  is  easily  accessible  to  the  public.  If  the  person  whose 
extradition  is  sought  shall  file  an  affidavit  that  he  can  not  go 
to  trial  without  the  evidence  of  certain  witnesses,  showing 
also  what  he  intends  to  prove  by  them,  and  that  he  is  not 
possessed  of  sufficient  means  and  is  actually  unable  to  pay  the 
fees  of  such  witnesses,  the  judge  or  commissioner,  before  whom 
the  hearing  is  had,  may  order  that  the  witnesses  shall  be  sub- 
poenaed, the  coststo  be  paid  as  similar  fees  are  paid  in  the  case 
of  witnesses  subpoenaed  in  behalf  of  the  United  States. 


21  Kent.  Com.  36;  In  re  Metzger,  5 
How.  (U.  S.)  176,  188;  United  States 
v.  Rauscher,  119  U.  S.  407,  411; 
United  States  v.  Davis,  2  Sumner  C. 
C.  482,  and  see  the  remarks  of  Judge 
Jenkins  in  47  Fed.  Rep.  833,  on  page 
837. 

2  The  countries  with  which  treaties 
have  been  made  are  as  follows :  Great 
Britain,  8  Statutes  at  L.  576;  France, 
8  Statutes  at  L.  582,  617,  741 ;  Hawai- 
ian Islands,  9  Statutes  at  L.  981 ; 
Swiss  Confederation,  11  Statutes  at  L. 
587;  Prussia,  10  Statutes  at  L.  964; 
Austria,  11  Statutes  at  L.  691,  17 
Statutes  at  L.  835;  Sweden  and  Nor- 
way, 12  Statutes  at  L.  1125;  Vene- 
zuela, 12  Statutes  at  L.  143;   Mexico, 


12  Statutes  at  L.  199,  15  Statutes  at 
L.  688;  Hayti,  13  Statutes  at  L.  711; 
Republic  of  Dominica,  15  Statutes  at 
L.  473;  Italy,  11  Statutes  at  L.  629,  16 
Statutes  767,  24  Statutes  at  L.  1001 
Salvador,  18  Statutes  at  L.  693,  796 
Nicaragua,  17  Statutes  at  L.  815 
Peru,  18  Statutes  at  L.  719;  Orange 
Free  State,  18  Statutes  at  L.  751; 
Ecuador,  18  Statutes  at  L.  756;  Bel- 
gium, 18  Statutes  at  L.  804,  22  Statutes 
at  L.  972;  Ottoman  Empire,  19  Statutes 
at  L.  572;  Spain,  19  Statutes  at  L. 
650,  22  Statutes  at  L.  991  ;  Nether- 
lands, 21  Statutes  at  L.  769;  Japan, 
24  Statutes  at  L.  1015.  See,  also, 
United  States  Revised  Statutes, 
§§  5270-5280. 


556  CRIMINAL  EVIDENCE.  §  496 

§  496.  Burden  of  proof  and  amount  of  evidence  required  in 
international  and  interstate  extradition  to  show  criminality 
and  other  essential  facts. — The  burden  of  proof  to'  show- 
criminality,  and  all  other  facts  which  will  warrant  the  return 
of  the  alleged  fugitive  from  justice  to  the  state  under  whose 
laws  he  is  charged  with  crime,  is  upon  the  officer  sent  to  effect 
his  return;  or  on  the  person  demanding  it.  It  was  formerly 
held  that  the  proof  of  criminality  should  be  as  full  and  satis- 
factory as  in  the  judgment  of  the  magistrate  would  suffice  to 
authorize  a  conviction  if  he  were  sitting  at  the  trial  of  the 
accused.1 

This,  however,  is  no  longer  the  law.  The  demanding  party 
is  never  required  to  produce  proof  of  the  necessary  facts  which 
shall  convince  the  court  beyond  all  reasonable  doubt;  for  an 
extradition  proceeding  is  not,  in  strictness  of  law,  regarded  as 
a  criminal  trial,  nor  do  the  rules  of  evidence  which  apply  to 
criminal  trials  apply  to  it.  It  possesses  more  of  the  character 
of  a  preliminary  examination  of  a  person  accused  of  crime, 
the  final  determination  of  whose  criminality  will  take  place  in 
the  jurisdiction  where  the  alleged  crime  was  committed.2 
Hence,  according  to  the  present  state  of  the  law,  the  commis- 
sioner or  magistrate  will  do  well  to  avoid  acting  in  a  technical 
spirit,  or  requiring  the  same  amount  or  degree  of  proof  that 
would  be  demanded  to  convict  the  accused  before  a  jury.3 

Some  satisfactory  and  legal  evidence  of  guilt  will  be  re- 
quired. But  if  the  necessary  facts,  i.  e.,  that  the  accused  is  a 
fugitive,  and  that  he  is  charged  writh  crime,  are  satisfactorily 
proved,  the  examining  magistrate  ought  to  commit  the  accused 
to  await  the  action  of  the  executive  directing  his  return, 
though  the  evidence  of  guilt  does  not  possess  that  weight  and 

1  Ex  parte  Kaine,  3  Blatchf .  1 ;  In  re  the  facts  with  the  precision  of  an  in- 
Macdonnell,  11  Blatchf.  C.  C.  170.  dictment;  but  it  should  set  forth  the 

2  See  Spear  on  Extradition,  page  25.     substantial   features   of  the  crime  so 
3 In  re  Breen,  73  Fed.  Rep.  458,  459.     that  the  court  can  readily  see  there- 

The  complaint,   signed  by  a  foreign  from  that  the  offense  is  one  of  those 

consul,  on  which  is  based  a  warrant  which  are  enumerated  in  the  treaty, 

of   extradition    issued    by    a  United  In  re  Adutt,  55  Fed.  Rep.  376,  379. 
States  commissioner,  need  not  state 


§  497  INTERNATIONAL    AND    INTERSTATE    EXTRADITION.  557 

cogency  which  would  be  required  to  convict  him  were   he  on 
trial  before  a  jury. 

But  in  any  case  the  evidence  to  show  criminality  must  be 
legal,  and  such  as  will  create  a  probability  that  the  alleged 
fugitive  is  guilty.  Though  it  may  be  unsatisfactory  and  far 
from  convincing,  yet  if,  on  the  whole,  it  may  create  conflict- 
ing presumptions  and  probabilities  that  the  accused  is  guilty, 
then  he  should  be  committed.1  In  other  words  it  is  generally 
required,  both  in  international  and  interstate  extradition,  that 
such  an  amount  and  degree  of  evidence  shall  be  produced 
before  the  commissioner  or  magistrate  as  would  justify  com- 
mitting the  accused  for  trial  if  the  crime  charged  against  him 
was  alleged  to  have  been  committed  in  the  state  where  the 
examination  is  had.2 

§  497.  Fugitive  character  of  the  person  claimed  for  extradi- 
tion.— Whether  the  person  whose  extradition  is  demanded  has 
fled  from  justice  to  the  country  or  state  in  which  he  is  found 
is  a  question  to  be  determined  in  the  first  instance  by  the  ex- 
ecutive of  that  state.3 

Some  few  authorities  hold  that  the  determination  of  this 
question  by  the  executive  of  the  state  is  conclusive  upon  the 

'Sternaman  v.  Peck  (C.  C.  A.),  80  who  is  allowed  to  go  outside  of  a  re- 
Fed.  Rep.  883,  884;  In  re  Oteiza,  136  formatory  in  the  state  of  New  York  on 
XJ.  S.  330,  336,  10  Sup.  Ct.  Rep.  1031.  parole  under  a  statute  of  that  state,  he 

2  In  re  Bryant,  80  Fed.  Rep.  282,  284;  promising  to   obey   the  directions  of 

Ex  parte  Bryant,  167  U.  S.  104,  17  Sup.  the  parole,  which  are  that  he  shall  go 

Ct.  Rep.  744;   In  re  Farez,  7  Blatchf.  to  Michigan,  and  who,  instead  of  do- 

C.  C.  345,  40  How.  Pr.  Rep.  107;  In  re  ing  so,    comes    to   Connecticut,  is    a 

Henrich,  5  Blatchf.  C.  C.  414,  425 ;  In  fugitive  from  justice  within  the  provis- 

re  Doo  Woon,  18  Fed.  Rep.  898,  899;  ions  of  the  United  States  constitution. 

Ex  parte  Morgan,  20  Fed.  Rep.  298,  Drinkall  v.   Spiegel,  68  Conn.  441,  36 

307;  Benson  v.  McMahon,  127  U.  S.  Atl.   Rep.  830.     A  person  may  in  law 

457,  461 ;  In  re  Oteiza,  136  U.  S.  330,  be  regarded  as  a  fugitive  from  justice 

335,  10  Sup.  Ct.  Rep.  1031;  In  re  Mc-  when  he  has  committed  a  crime  in  a 

Phun,  30  Fed.  Rep.  58.  state,  and  withdraws  from  the  juris- 

3 Hess  v.  Grimes   (Kan.,   1897),  48  diction  of  its  courts  without  waiting 

Pac.  Rep.  596;   Ex  parte  Reggel,  114  to    abide    the    consequences    of    his 

U.S.  642,  652 ;  In  re  White,  55  Fed. Rep.  action.     In  re  White,  55  Fed.  Rep.  54, 

54,  57,  citing  and  approving  Roberts  57,  citing  Roberts  v.  Reilly,  116    U.  S. 

v.  Reilly,   116  U.  S.  80.     A  prisoner  80. 


558 


CRIMINAL    EVIDENCE. 


§497 


courts  ;  and,  where  this  view  is  admitted  to  be  the  correct 
one,  the  courts  will  not,  upon  the  return  of  a  writ  of  habeas 
corpus,  receive  evidence  to  show  that  the  accused  was  never  in, 
and  had  not  in  fact  fled  from,  the  state  which  demands  his 
return  to  its  domain. 

Other  cases  support  the  proposition  that  the  decision  of  this 
question  by  the  executive  is  reviewable  by  the  federal  courts. 
It  must  be  made  to  appear  from  the  evidence  that  the  accused 
is  a  fugitive  from  the  justice  of  the  demanding  state.  The 
federal  statute  does  not  prescribe  the  character  of  the  proof  re- 
quired to  show  that  he  is  a  fugitive.  An  affidavit,  sworn  to, 
and  attested  by  the  seal  of  the  court  in  which  an  indictment  is 
pending  against  the  accused,  and  stating  that  "  he  is  a  fugitive 
from  justice,"  and  that  he  is  then  in  the  asylum  state,  has  been 
held  sufficient  over  an  objection  that  such  a  statement  is  only 
a  conclusion  of  law  and  does  not  state  any  facts.1 

And  the  accused  ought  to  be  permitted  to  disprove  the  alle- 
gation that  he  is  a  fugitive  from  justice  by  any  proper  evidence, 
as,  for  example,  by  proof  that  he  had  never  been  a  resident  of 
the  state  from  which  the  demand  came.2 

The  determination  of  the  question  whether  the  person  who 
is  claimed  to  be  a  fugitive  is  "  charged  with  treason,  felony  or 
other  crime,"  is   exclusively   for   the  examining  magistrate  or 


1  Ex  parte  Reggel,  114  U.  S.  642,  643. 
In  the  case  of  Reggel,  114  U.  S.  642, 
650,  652,  the  court  by  Harlan,  J.,  said : 
"It  is  within  the  power  of  each  state, 
except  as  her  authority  may  be  limited 
by  the  constitution  of  the  United 
States, to  declare  what  shall  be  offenses 
against  her  laws,  and  citizens  of  other 
states,  when  within  her  jurisdiction, 
are  subject  to  those  laws.  In  recogni- 
tion of  this  right  *  *  the  words  of  the 
clause  in  reference  to  fugitives  from 
justice  were  made  sufficiently  compre- 
hensive to  include  every  offense 
against  the  laws  of  the  demanding 
state,  without  exception  as  to  the 
nature  of  the  crime.  *  *  Upon  the 
executive  of  the  state  in  which  the  ac- 


cused is  found  rests  the  responsibility 
of  determining,  in  some  legal  mode, 
whether  he  is  a  fugitive  from  the  jus- 
tice of  the  demanding  state.  He  does 
not  fail  in  his  duty  if  he  makes  it  a 
condition  precedent  to  the  surrender 
that  it  be  shown,  by  competent  proof, 
that  the  accused  is,  in  fact,  a  fugitive 
from  justice." 

2  Ex  parte  Joseph  Smith  (The  Mor- 
mon Prophet),  3  McLean  C.  C.  121, 137 ; 
In  re  Cook,  49  Fed.  Rep.  833;  In  re 
Manchester,  5  Cal.  237;  Jones  v. 
Leonard,  50  Iowa  106;  Hartman  v. 
Aveline,  63  Ind.  344 ;  Wilcox  v.  Nolze, 
34  Ohio  St.  520,  521 ;  In  re  White,  55 
Fed.  Rep.  54,  58. 


§498 


INTERNATIONAL    AND    INTERSTATE    EXTRADITION. 


559 


federal  commissioner  to  decide  upon  all  the  facts  in  evidence. 
Whether  the  person  whose  extradition  is  demanded  is  charged 
with  any  crime  is  a  question  of  fact  to  be  shown  by  the  evi- 
dence in  the  case.  Whether  the  crime  is  extraditable  under 
the  constitution  or  under  a  treaty  is  a  question  of  law.  The 
determination  of  the  former  question  can  not  be  reviewed 
under  an  exception  that  it  is  against  the  weight  of  the  evidence. 
But  the  issue  of  law,  whether  the  crime  as  proved  is  extradita- 
ble under  the  statute  or  treaty,  is  one  involving  the  construc- 
tion of  a  writing,  and  the  judgment  of  the  magistrate  or  com- 
missioner thereon  may  be  reversed  if  palpably  erroneous  in 
law.1 

§  498.    Evidential  rules  governing  interstate  extradition. — 

The  constitution  of  the  United  States  provides,2  "  that  any  per- 
son charged  in  any  state  with  treason,  felony  or  other  crime, 
who  shall  flee  from  justice  and  be  found  subsequently  in  any 
other  state  of  the  Union,  shall,  on  the  demand  of  the  executive 
of  the  state  from  whence  he  has  fled,  be  delivered  up  to  be  re- 
moved to  the  state  having  jurisdiction  of  his  crime." 

At  a  very  early  period  congress  endeavored  by  statutory  en- 
actment to  carry  into  effect  this  section  of  the  constitution.3 


^rnelas  v.  Ruiz,  161  U.  S.  502,  16 
Sup.  Ct.  Rep.  689. 

2  Art.  4,  §  2. 

8  United  States  Statute  of  1793,  c. 
7,  §  1.  The  act  of  1793,  U.  S.  R.  S., 
§  5278,  reads  as  follows  :  "  When- 
ever the  executive  authority  of  any 
state  or  territory  demands  a  person  as 
a  fugitive  from  the  justice  of  the  ex- 
ecutive authority  of  any  state  or  ter- 
ritory to  which  such  person  has  fled 
and  produces  a  copy  of  the  indictment 
found  or  an  affidavit  made  before  a 
magistrate  of  any  state  or  territory, 
charging  the  person  demanded  with 
having  committed  treason,  felony  or 
other  crime,  certified  as  authentic  by 
the  governor  or  chief  magistrate  of 
the  state  or  territory  from  whence  the 


person  so  charged  has  fled,  it  shall  be 
the  duty  of  the  executive  authority  of 
the  state  or  territory  to  which  such 
person  has  fled  to  cause  him  to  be  ar- 
rested and  secured,  and  to  cause  notice 
of  the  arrest  to  be  given  to  the  execu- 
tive authority  making  such  demand, 
or  to  the  agent  of  such  authority  ap- 
pointed to  receive  the  fugitive,  and  to 
cause  the  fugitive  to  be  delivered  to 
such  agent  when  he  appears.  If  no 
such  agent  appears  within  six  months 
from  the  time  of  the  arrest  the  pris- 
oner may  be  discharged.  All  costs  or 
expenses  incurred  in  apprehending, 
securing  and  transmitting  such  fugi- 
tive to  the  state  or  territory  making 
such  demand  shall  be  paid  by  such 
state  or  territory." 


560  CRIMINAL  EVIDENCE.  §  499 

In  construing  this  statute  the  courts  have  held  :  First,  that 
the  return  of  the  fugitive  from  justice  must  have  been  de- 
manded by  the  executive  authorities  of  the  state  from  whence 
he  has  fled.  Second,  it  must  affirmatively  appear  by  the  evi- 
dence that  he  is  charged  with  the  commission  of  some  extra- 
ditable crime  which  is  within  the  jurisdiction  of  its  courts. 
The  fact  that  he  is  charged  with  such  a  crime  may  be  proved 
by  the  production  of  a  warrant  for  his  arrest  or  an  indictment 
duly  certified  and  authenticated  as  provided  by  statute,  supple- 
mented by  an  affidavit  reciting  any  other  facts  which  are  neces- 
sary to  confer  jurisdiction  and  charging  him  substantially  with 
a  crime  against  the  laws  of  the  state  demanding  his  return.1 

§  499.  Character,  form  and  authentication  of  indictments, 
etc.,  in  interstate  extradition. — The  documents  accompanying 
the  requisition  papers  to  be  admissible  in  evidence  must  be 
certified  as  authentic  by  the  governor  or  chief  magistrate  of 
the  state  or  territory  from  whence  the  person  demanded  has 
fled.8  The  indictment  which  is  produced  to  show  that  the  ac- 
cused is  charged  with  a  crime  must  allege  some  definite  crime. 
If  it  does  this,  and  if  it  is  also  properly  authenticated  by  the 
executive  as  required  by  statute,  it  will  be  sufficient  proof  of 
the  fact  that  the  accused  is  charged  with  crime  to  prevent  his 
discharge  from  custody  on  the  return  of  a  writ  of  habeas  corpus, 
though  the  indictment  is  inartistically  drawn  or  is  otherwise 
technically  defective  in  form.3 

An  affidavit  alleging  upon  information  and  belief  that  the 
fugitive  has  committed  a  crime  is  wholly  insufficient  as  proof 
of  criminality.4     The  general  rule  is  that  the  affidavits  and  the 

1  Ex  parte  Sternaman,  77  Fed.  Rep.  Ct.  Rep.  155;  Davis'  Case,  122  Mass. 
595;  Ex  parte  Reggel,  114  U.  S.  642,  324,  329;  In  re  Greenough,  31  Vt.  279; 
649.  State,  ex  rel.  O'Malley,  v.  O'Connor,  38 

2  Kingsbury's  Case,  106  Mass.  223;  Minn.  243,  36  N.  W.  Rep.  462;  In  re 
State,  ex  rel.  Smith,  v.  Goss  (Minn.,  Voorhees,  32  N.  J.  L.  141  ;  Roberts  v. 
1897i,  68  N.  W.  Rep.  1089;  People  v.  Reilly,  116  U.  S.  80,  6  Sup.  Ct.  Rep. 
Donohue,  84  N.  Y.  438;  Ex  parte  291;  Ex  parte  Reggel,  114  U.  S.  642, 
Powell,  20  Fla.  806.     See,  also,  Mis-  651. 

sissippi  Code,  1892,  §  2162.  i  Ex  parte  Joseph  Smith,  3  McLean 

3  Jackson  v.  Archibald,  12  Ohio  Cir.     C.  C.  121,  137;  Ex  parte  Morgan,  20 


§500 


INTERNATIONAL    AND    INTERSTATE    EXTRADITION. 


501 


requisition  papers  which  are  used  as  evidence  in  an  interstate 
extradition  proceeding  need  not  be  framed  with  extreme  tech- 
nical precision  in  order  to  be  admissible.  But  they  must  show 
with  clearness  to  the  satisfaction  of  the  magistrate  that  the 
party  whose  extradition  is  sought  was  in  the  demanding  state 
at  the  time  of  the  crime,1  that  he  is  a  fugitive  from  justice,2  as 
well  as  the  character  and  venue  of  the  crime  with  which  he 
stands  charged.3 

If  the  indictment  and  the  affidavit  are  properly  authenti- 
cated as  required  by  the  statute,  the  court  will  not,  upon  the 
return  of  a  writ  of  habeas  corpus,  receive  evidence  to  prove  or 
to  disprove  its  validity,  or  to  contradict  its  allegations,  or  gen- 
erally to  inquire  into  the  guilt  or  innocence  of  the  accused.* 

§  500.  Constitutional  and  statutory  regulation  of  the  mode 
of  proving  and  effect  of  records  of  other  states. — As  regards 
the  mode  of  proving  the  necessary  facts  in  interstate  extradi- 
tion, it  may  be  sufficient  to  call  attention  to  the  provision  of 
the    federal   constitution   which   enacts  that    "full    faith   and 


Fed.  Rep.  298,  307.  "  It  must  appear, 
therefore,  to  the  governor  of  the  state 
to  whom  such  a  demand  is  made,  that 
the  person  demanded  is  substantially 
charged  with  a  crime  against  the  laws 
of  the  demanding  state,  by  an  indict- 
ment or  an  affidavit,  certified  as  au- 
thentic by  the  governor  of  the  latter 
state,  and  that  the  person  is  a  fugitive 
from  the  justice  of  that  state.  The 
first  of  these  prerequisites  is  a  ques- 
tion of  law,  always  open  upon  the  face 
of  the  papers  to  judicial  inquiry  on  an 
application  for  a  discharge  under  a 
writ  of  habeas  corpus.  The  second  is 
a  question  of  fact,  which  the  governor 
of  the  state  upon  whom  the  demand 
is  made  must  decide  upon  such  evi- 
dence as  he  may  deem  satisfactory. 
A  certified  copy  of  the  law  said  to 
have  been  broken  need  not  be  fur- 
nished. The  courts  of  the  United 
36— Cr.  Ev. 


States  take  judicial  notice  of  the  law 
of  all  the  states."  Remarks  of  the 
court  in  Roberts  v.  Reilly,  116  U.  S. 
80,  95-96. 

1In  re  Ryan,  15  Misc.  Rep.  303,  36 
N.  Y.  Supp.  888. 

2  In  re  Heyward,  1  Sandf.  N.  Y.  701 ; 
Ex  parte  Joseph  Smith,  3  McLean  C. 
C.  121,  137-139. 

3  Ex  parte  Romanes,  1  Utah  23 ;  In  re 
Manchester,  5Cal.  237;  Ex  parte  Jo- 
seph Smith,  3  McLean  C.  C.  121,  134, 
137;  Ex  parte  Reggel,  114  U.  S.  642, 
651. 

*Ex  parte  Devine  (Miss.,  1897),  22 
So.  Rep.  3;  Work  v.  Corrington.  34 
Ohio  St.  64;  Ex  parte  Sheldon,  34 
Ohio  St.  319;  State  v.  Schlemn,  4 
Harr.  577:  In  re  Ryan,  15  Misc.  Rep. 
303,  36  N.  Y.  Snpp.  888;  People  v. 
Pinkerton,  77  N.  Y.  245;  In  re  White, 
55  Fed.  Rep.  54,  58. 


562  CRIMINAL  EVIDENCE.  §  500 

credit  shall  be  given  in  each  state  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  state;  and  the  congress 
may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof."1 

To  fully  effectuate  this  constitutional  provision  congress  has 
enacted  "  that  the  records  and  judicial  proceedings  of  the  courts 
of  any  state  shall  be  proved  or  admitted  in  any  other  court  within 
the  United  States  by  the  attestation  of  the  clerk,  and  the  seal 
of  the  court  annexed,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  judge,  chief  justice  or  presiding  magistrate,  as 
the  case  maybe,  that  the  said  attestation  is  in  due  form.  And 
the  said  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States  as  they  have  by  law  or  usage 
'  in  the  courts  of  the  state  from  whence  such  records  are  or  shall 
be  taken."2 

The  attestation  of  the  clerk  which  is  required  by  the  statute 
must  be  in  form  the  same  as  that  usually  employed  in  the  state 
whence  it  comes.  If  the  court  has  a  seal  it  must  be  affixed  to 
the  certificate  of  the  clerk,  while  if  it  has  none  this  fact  must 
appear  on  the  face  of  the  certificate.3 

The  certificate  of  the  judge,  to  the  effect  that  the  attestation 
is  in  due  form,  must  show  on  its  face  that  the  judge  certi- 
fying is  the  chief  or  presiding  judge  at  the  date  of  certifying 
the  record.4  It  must  also  show  that  the  clerk  who  attests  is  at 
the  date  of  the  attestation  the  clerk  of  the  court,  and  that  his 
attestation  is  in  due  form.  Where  a  court  has  gone  out  of  ex- 
istence, the  clerk  and  presiding  justice  of  another  court  with 
which  it  has  been  consolidated,  or  upon  which  its  powers  and 
jurisdiction  have  been  conferred,  may  furnish  the  requisite  cer- 
tification and  attestation. 

1  Constitution  of  the  United  States,  criminal  cases,  see  Underhill  on  Evi- 
article  4,  section  1.  dence,  §148. 

2  United  States  Statute  May  26, 1790 ;  4  Settle  v.  Alison,  8  Ga.  201 ;  Ste- 
United  States  Statutes  at  Large,  L.  and  phenson  v.  Bannister,  3  Bibb.  369,  and 
B.  Edition  122.  cases   cited  Underbill  on   Evidence, 

3  For  a  full  citation  of    civil    and  note  4,  p.  224. 


§  501  INTERNATIONAL    AND    INTERSTATE    EXTRADITION.  563 

The  statute,  despite  the  mandatory  character  of  its  language, 
been  held  not  to  furnish  an  exclusive  mode  of  authenti- 
cating public  records.  And  for  the  reason  that  the  statute 
refers  expressly  only  to  courts  having  a  presiding  judge,  a 
clerk  and  a  seal,  it  has  been  held  that  courts  not  of  record,  or 
those  having  only  limited  powers  and  jurisdiction,  were  not 
included  in  its  terms.  The  copies  of  the  records  and  the  pro- 
ceedings of  such  courts  as,  for  example,  courts  of  justices  of 
the  peace  and  minor  municipal  courts,  are  to  be  proved  and 
authenticated  according  to  the  procedure  of  the  state  in  whose 
tribunals  they  are  to  be  used.1  If  the  requirements  of  the  fed- 
eral statute  are  substantially  complied  with,  a  certified  and 
attested  copy  ought  not  to  be  rejected  because  of  mere  formal 
verbal  and  technical  irregularities,  as,  for  example,  because  it 
does  not  show  the  identity  of  the  accused,  or  that  the  court 
had  competent  jurisdiction,  or  the  facts  upon  which  his  convic- 
tion was  founded.2 

§  501.  General  rules  regulating  the  taking  of  evidence  in 
foreign  extradition. — In  all  cases  of  foreign  extradition,  the 
taking  of  the  evidence  and  the  examination  of  the  accused,  so 
far  as  these  matters  are  not  controlled  by  statute,  must  be  con- 
ducted according  to  the  laws  of  the  state  in  which  the  proceed- 
ings are  had.  If  the  law  of  that  state  entitles  the  accused  on 
his  preliminary  examination  to  testify  in  his  own  behalf,  a 
person  under  examination  for  extradition  is  entitled  to  be  so 
examined.3  But  generally  the  rules  and  principles  of  the 
English  common  law  as  applied  to  criminal  charges  are  not 
controlling  to  their  fullest  extent  in  cases  of  international  ex- 
tradition. Usually  the  statutes  and  treaties  provide  for  the 
character  of  the  evidence  and  what  form  it  shall  assume. 
Their  provisions  are  controlling  and  under  them  it  has  been 
held  that  the  accused  is  not  entitled  to  be  confronted  with  the 
witnesses  against  him.4 

1  See  Underhill  on  Evidence,  p.  225,  3In  re  Farez,  7  Blatchf.  C.  C.  345,  40 
for  cases.  How.  Prac.  Rep.  107. 

2  See  cases  cited  in  Underhill  on  4  In  re  Dugau,  2  Lowell  C.  C.  (Mass. 
Evidence,  §§  148,  159.  District  Court)  367. 


564  CRIMINAL  EVIDENCE.  §  502 

So,  too,  the  documentary  evidence,  if  properly  authenticated, 
must  receive  the  same  degree  of  credit  and  weight  as  proof  in 
the  court  wherein  it  is  offered,  as  would  be  accorded  to  living- 
witnesses  who  give  testimony  personally  in  the  presence  of 
that  court.1 

The  federal  commissioner  should  keep  a  record  of  all  the 
oral  evidence  taken  before  him,  written  out  in  a  narrative 
form  and  not  by  question  and  answer.  He  should  note  therein 
all  objections  to  the  admissibility  of  the  evidence  and  the 
grounds  of  such  objections.  The  party  seeking  the  extradi- 
tion of  the  fugitive  ought  to  furnish  the  commissioner  with  an 
accurate  translation  of  every  piece  of  documentary  evidence 
which  is  written  in  a  foreign  language,  accompanied  by  an 
affidavit  sworn  to  by  the  translator  to  the  effect  that  the  trans- 
lation is  correct.2 

The  statute  provides3  that  the  commissioner  shall  receive  the 
testimony  of  such  witnesses  as  are  offered  by  the  accused.  He 
need  not  adjourn  the  proceedings  in  order  to  permit  the  ac- 
cused to  procure  depositions  to  prove  an  alibi.4 

§  502.  Authentication  by  consular  certificate  of  warrants  and 
other  papers  used  as  evidence  in  international  extradition. — 

The  statute  also  provides  that  where  any  deposition,  warrant 
or  other  papers,  or  copies  thereof,  shall  be  offered  in  evidence 
upon  the  hearing  of  any  case,  in  which  the  extradition  of  an 
alleged  fugitive  is  required,  the  same  shall  be  received  as  evi- 
dence for  all  purposes  of  the  hearing  if  they  shall  be  legally 
authenticated  so  as  to  entitle  them  to  be  received  for  similar  pur- 
poses in  the  courts  and  tribunals  of  the  foreign  country  whence 
the  accused  is  alleged  to  have  escaped.  And  it  is  further  pro- 
vided that  the  certificate  of  the  principal  diplomatic  or  con- 
sular officer  of  the  United  States  resident  in  such  foreign 
country   shall  be  proof   that  any  deposition,  warrant  or  othei 

1  In  re  Farez,  7  Blatchf.  C.  C.  345.  s  August  3,  3882. 

*In  re  Henrich,  5  Blatchf.  C.  C.  4  In  re  Wadge,  15  Fed.  Rep.  864, 
414,  425.  affirming  21  Blatchf.  C.  C.  300. 


§  502  INTERNATIONAL    AND    INTERSTATE    EXTRADITION.  5G5 

paper  or   copies  thereof,  so   offered,  are  authenticated   in  the 
manner  required  by  this  act.1 

In  construing  this  statute  the  courts  have  held  that  it  pro- 
vides for  the  introduction  of  two  sorts  of  documentary  evi- 
dence. First.  Original  depositions,  original  warrants  and 
original  "other  papers."  Second.  Copies  of  any  such  dep- 
ositions, warrants  or  "other  papers,"  which  must  be  origi- 
nals or  copies  of  such  originals  as  are  legally  entitled  to  be  re- 
ceived in  the  tribunal  of  the  foreign  country  as  proof  of  crimi- 
nality with  respect  to  the  offense  charged  if  the  inquiry  were 
had  in  the  foreign  tribunal.  And  all  papers  are  to  be  authen- 
ticated according  to  the  law  of  the  foreign  country.2 

It  would  seem  from  the  language  of  the  statute  that  its  pro- 
visions were  mandatory.  But  it  has  been  held  that,  under 
certain  circumstances,  the  certificate,  if  it  is  presented  in  such 
a  form  as  not  to  comply  strictly  with  the  statute,  may  be  aided 
and  supplemented  by  other  evidence,  either  documentary  or 
oral.  Thus,  where  the  consular  certificate  omitted  to  state 
expressly  that  depositions  were  legally  authenticated  so  as  to 
be  receivable  as  valid  evidence  of  criminality  in  the  courts  of 
the  kingdom  of  Prussia,  it  was  permitted  to  introduce  the  cer- 
tificates of  court  officials  of  that  country  to  the  effect  that  the 
depositions  were  proper  and  valid  evidence.  The  oral  testi- 
mony of  a  police  officer,  to  the  effect  that  the  depositions 
attached  to  the  requisition  papers  had  been  signed  and  sworn 
to  in  his  presence,  that  they  were  originals  and  that  they 
would  be  received  to  show  criminality   in  the  tribunals  of  the 


1  United  States  R.  S.,  §  5271 ;   In  re  and  legally  authenticated,  so  as  to  en- 

Henrich,   5   Blatchf.    C.    C.  414,  425,  title  them  to  be  received  for  similar 

42(5.     See,  also,  In  re  Wadge,  16  Fed.  purposes  by  the   tribunals   of  Great 

Rep.  332,  333.     In  a  recent  case  of  in-  Britain,"  is  in  proper  form,  and  the 

ternational  extradition,  the  certificate  documents  are  to  be  received  as  com- 

of  the  American  embassador  to  Great  petent  evidence.    In  re  Breen,  73  Fed. 

Britain  to  the  effect  that  the  papers  Rep.  458,  459. 

containing  the  evidence  of  the  com-  zIn  re  Fowler,  4  Fed.  Rep.  303,  309, 

mission  of  the  crime  by  the  party  18  Blatchf.  C.  C.  430. 
held  for  extradition    "are    properly 


566  CRIMINAL  EVIDENCE.  §  503 

foreign  country,  is  sufficient  to  supplement  an  insufficient 
authentication  by  a  diplomatic  official.1 

§  503.    The  competency  of  certified  copies   as   evidence  of 

criminality. — The  competency  of  the  evidence  offered  in  cases 
of  foreign  extradition  must  be  determined  according  to  the 
law  of  the  place  where  the  proceeding  is  had.  In  the  absence 
of  statute,  copies  of  ex  parte  depositions  taken  out  of  the  juris- 
diction, though  properly  attested  by  the  clerk  of  the  foreign 
court,  are  never  evidence  of  the  commission  of  a  crime  by  the 
accused.2 

If  the  fact  to  be  proved  is  only  the  existence  of  a  foreign 
record,  as,  for  example,  the  fact  that  the  accused  had  been  con- 
victed of  a  crime,  a  certified  copy  of  the  record  is  competent 
evidence  of  that  fact,  even  in  the  absence  of  statute.  But 
when  the  fact  to  be  proved  is  the  commission  of  a  crime  by 
the  accused,  and  when,  as  in  the  present  instance,  such  proof 
of  that  fact  is  required  as  would  suffice  to  commit  him  on  a 
preliminary  examination  were  the  venue  of  the  crime  laid  in 
this  country,  then  a  different  question  is  presented  and  a  dif- 
ferent rule  applies. 

Proof  that  there  is  legal  and  competent  proof  of  criminality 
elsewhere  on  file  in  some  other  court  is  never  equivalent  to 
proof  here.  The  documents,  whether  originals  or  copies,  must 
be  such  as  would  be  competent  for  a  similar  purpose,  i.  e.,  as 
evidence  of  criminal ty,  in  the  tribunals  of  the  foreign  country. 
The  full  certificate  of  the  diplomatic  officer  that  they  are  so  is 
absolute  and  conclusive,  and  admits  them  in  the  court  here, 
whether  they  are  originals  or  copies.  But  if  they  are  copies, 
and  it  does  not  appear  either  from  this  certificate  or  from 
some  other  competent  evidence,  either  oral  or  written,  that 
copies  of  original  depositions  are  received  by  the  foreign  court 
for  the  purpose  of  proving  criminality,  they  will  not  be 
received  for  that  purpose  here.3 

1  In  re  Wadge,  15  Fed.  Rep.  864,  16  In  re  Kaine,  14  How  U.  S.  103,  115, 

Fed.  Rep.  332,   334,  21  Blatchf.  C.  C.  116, 144,  146,  10  N.  Y.  Leg.  Observer, 

300;    In  re  Fowler,  4  Fed.  Rep.  303,  257,268. 

312,  18  Blatchf.  C.  C.  430,  437,  438.  3  In  re  McPhun,  30  Fed.  Rep.  57,  59, 

8 In  re  Wadge,  16  Fed.  Rep.  332,  334 ;  60 ;  In  re  Fowler,  4  Fed.  Rep.  303,  312, 


§  504  INTERNATIONAL    AND    INTERSTATE    EXTRADITION.  507 

§  504.  Proof  of  foreign  laws  and  treaties  in  international 
extradition. — In  the  case  of  foreign  extradition,  the  foreign 
law,  which  the  prisoner  is  charged  with  breaking,  will  not  be 
judicially  notice*!  by  the  federal  court.1  The  existence,  con- 
tents and  character  of  the  foreign  law  must  be  proved.  This 
may  usually  be  done,  in  the  case  of  a  foreign  statute,  by  read- 
ing it  from  a  printed  book  purporting  to  contain  the  statute  in 
question';  and  which  is  properly  attested  or  authenticated  as  a 
true  copy  of  the  statute  by  the  supreme  executive  authority  of 
the  foreign  country;  or  which  is  otherwise  satisfactorily  proved 
to  have  been  published  by  proper  authority  and  which  is 
shown  to  have  been  received  as  proof  of  the  statute  in  the 
courts  of  the  foreign  state/  Doubtless  under  the  existing 
statute  the  certificate  of  the  principal  diplomatic  or  consular 
officer  of  the  United  States,  to  the  effect  that  the  book  was 
authenticated,  so  as  to  entitle  it  to  be  received  for  a  similar 
purpose  in  the  foreign  country,  would  be  sufficient. 

A  practicing  attorney  of  the  foreign  state,  or  some  other  per- 
son, official  or  otherwise,  who  has  had  some  practice  in  the 
courts  of  the  foreign  state,  and  who  is  familiar  with  its  laws, 
may  testify  to  his  knowledge  or  opinion  as  to  what  that  law  is. 
Such  a  witness,  called  to  prove  a  foreign  law,  may  refresh  his 
memory  by  reading  from  text-books  of  authority  and  from  the 
reports  of  cases  decided  in  the  courts  of  the  foreign  country, 
and  he  may,  perhaps,  read  such  books  to  the  court,  provided 
he  is  able  to  swear  that  they  are  admitted  as  authorities  by  the 
courts  of  the  foreign  country.3 

All  treaties  entered  into  by  the  government  of  the  United 
States  with  foreign  nations  are,  as  soon  as  they  are  confirmed 
by  the  senate  of  the  United  States,  a  component  part  of  the 
supreme  statutory  law  of  the  land.  They  possess  the  character 
and  efficacy  of  an  act  of  congress,  and  are  to  be  regarded  in 
that  light  for  all  purposes  by  the  courts  and  by  all  officials  at- 

18  Blatchf.  C.  C.  430,  439.     See,  also,  2See  Underhill  on  Evidence,  §143, 

Ex  parte  Ross,  2  Bond.  (S.  Dist.  Ohio)  p.  211. 

252.  s  Underhill  on  Evidence,  pages  212, 

^ee  Underhill  on  Evidence,  §242,  213. 
p.  376,  n.  4,  for  a  full  citation  of  cases. 


568  CRIMINAL  EVIDENCE.  §  505 

tached  to  them.  Hence  the  courts,  both  federal  and  state,  will 
take  judicial  notice  of  their  existence,  the  date  upon  which  they 
became  law,  their  contents  and  provisions,  and  the  rights  and 
obligations  of  all  parties,  public  and  private,  under  them.1 

So,  too,  the  courts  will  take  judicial  notice  of  the  existence 
of  all  foreign  governments  whose  existence,  either  de  facto  or 
de  jure,  has  been  acknowledged  by  the  executive  branch  of  the 
federal  government.  Whether  a  government  has  been  thus 
acknowledged  is  a  question  of  fact  to  be  proved  when  required 
by  a  certificate  from  the  secretary  of  state,  or,  perhaps,  by  oral 
evidence  of  the  fact  that  its  diplomatic  representatives  have 
been  duly  received  by  our  government.2 

§  505.  Proof  of  laws  in  interstate  extradition. — The  mode 
above  described  for  proving  foreign  laws  is  applicable  where 
the  law  of  one  state  of  the  Union  is  to  be  proved  in  the  courts 
of  another  state.  But  in  many  of  the  states  the  statutory  law 
of  a  sister  state  may,  under  special  statutes,  be  proved  by  read- 
ing the  same  from  a  printed  volume  which,  upon  its  face, 
purports  to  contain  the  statutory  law  of  that  state.3 

The  federal  courts  will  take  judicial  notice  of  all  the  state 
constitutions  and  of  all  statutes  which  are  applicable  to  the 
subject  of  interstate  extradition.  The  statutory  law  of  the 
various  states  of  the  Union  is  in  no  sense  a  foreign  law  as  re- 
gards the  deliberations  of  the  federal  judges  to  be  proved  as  the 
law  of  a  foreign  country.  It  must  be  taken  notice  of  in  the 
same  manner  as  the  laws  of  the  United  States  are  taken  notice 
of  by  these  courts.4 

1  United    States    v.    Arredondo,    6  fully  cited  in  Underhill  on  Evidence, 
Peters  (U.  S.)  691 ;  Foster  v.  Neilson,  page  213,  and  §  242,  page  377,  note  1. 
2  Peters  253,  314.    And  for  all  full  cita-        4  See  remarks  of  Story,  J.,  in  Owings 
tion   of   cases  on   this   question,    see  v.   Hull,  9  Peters    (U.   S.)   607,   624 
Underhill  on   Evidence,    §  242,  page  Jones  v.  Hays,  4  McLean  C.  C.  521 
378,  note  1.  Hanley  v.   Donoghue,    116   U.    S.    1 

2  See  Underhill  on  Evidence,  §  243.  Course  v.  Stead,  4  Dall.  22;  Newberry 

3  Sloan  v.  Torry,  78  Mo.  623;  St.  v.  Robinson,  36  Fed.  Rep.  841 ;  Jasper 
Louis,  etc.,  Co.  v.  Weaver,  35  Kan.  v.  Porter,  2  McLean  C.  C.  579;  Gorm- 
412,  11  Pac.  Rep.  408;  Eastman  v.  ley  v.  Bunyan,  138  U.  S.  623,  and  see 
Crosby,  90  Mass.  206;  and  see  cases  other  cases  fully  cited  in  Underhill 

on  Evidence,  §  242,  page  373,  note  13. 


CHAPTER  XXXIII. 


EVIDENCE    OF    PREVIOUS    CRIME    TO    INCREASE    PENALTY. 


§506.   Statutes  enhancing  the  punish- 
ment of  habitual  criminals. 

507.  Constitutionality  of  legislation 

punishing  habitual  criminals. 

508.  Conviction  of  the  former  crime 

must  have  been  prior  to  the 
commission  of  the  crime  now 
being  tried. 

509.  Effect  of  pardon  of  former  crime 

in  excluding  proof  of  prior 
conviction. 


§  510.  Setting  out  the  former  convic- 
tion in  the  indictment — Vari- 
ance. 

Effect  of  plea  of  not  guilty. 

Order  of    trying  the   issue    of 
former  conviction. 
513.   Necessity  of  proving  discharge 
from  prison. 

Proof  of  the  prior  conviction — 
How  made. 

Proof  of  the  identity  of  the  ac- 
cused with  the  person  previ- 
ously convicted. 


511 
512 


514. 


515. 


§  506.  Statutes  enhancing  the  punishment  of  habitual  crimi- 
nals.— In  England,  and  in  very  many  of  the  states  of  the 
American  Union,  from  the  earliest  times  statutory  enactments 
have  existed  by  virtue  of  which  a  severer  punishment  has  been 
inflicted  upon  the  accused,  if  the  crime  of  which  he  is  con- 
victed is  a  second,  a  third  or  a  subsequent  offense.1 


1  Section  688  of  the  New  York  Code 
of  Crim.  Pro.  provides,  "that  a  person, 
who,  after  having  been  convicted 
within  this  state  of  a  felony,  *  *  * 
commits  any  crime  within  this  state, 
is  punishable  upon  the  conviction  of 
the  second  offense  as  follows:  (1)  If 
the  subsequent  crime  is  such  that, 
upon  a  first  conviction,  the  offender 
might  be  punished,  in  the  discretion 
of  the  court,  by  imprisonment  for  life, 
he  must  be  sentenced  to  imprisonment 
for  life ;  and  if  the  subsequent  crime 
is  such  that,  upon  a  first  conviction, 


the  offender  would  be  punishable  by 
imprisonment  for  any  term  less  than 
his  natural  life,  then  such  person 
must  be  sentenced  to  imprisonment 
for  a  term  not  less  nor  more  than 
twice  the  longest  term  prescribed  un- 
der a  first  conviction."  In  the  state 
of  Massachusetts  this  matter  is  regu- 
lated by  Statutes  of  1817,  chapter  176, 
which  provide  "that  whenever  any 
person  who  shall  be  convicted  of 
crime,  before  any  court  competent  to 
try  the  same,  the  punishment  whereof 
shall   be  confinement  to   hard  labor 


(569) 


570  CRIMINAL  EVIDENCE.  §  507 

These  statutes,  it  will  be  observed,  are  highly  penal  in  their 
character,  and  their  application  ought  not  to  be  extended  to 
cases  which  do  not,  by  the  strictest  rules  of  construction,  come 
under  their  provisions.  It  is  clear  that  they  were  intended  by 
the  legislature  to  prevent  the  repetition  of  crime  by  the  same 
persons  by  imposing  increased  penalties  upon  old  offenders, 
and  inflicting  a  severer  punishment  upon  the  repetition  of 
certain  crimes.1 

The  purpose  of  all  of  these  statutes  is  the  very  laudable  one 
of  reforming  offenders  by  grading  the  punishment  for  crime 
in  such  a  manner  that  a  person  who  has  once  offended  against 
the  law,  and  who  has  been  convicted  and  punished  for  his 
crime,  will  be  deterred  from  a  repetition  of  his  act  by  the  fear 
of  an  enhanced  punishment  for  a  future  crime.  After  the  con- 
viction of  the  earlier  offense,  the  offender  is  given  a  period  for 
amendment  and  reformation,  and  to  enable  him,  if  he  will,  to 
return  to  the  paths  of  rectitude  and  usefulness.  If  he  shall 
fail  to  profit  by  this  opportunity  for  his  moral  rehabilitation 
and  shall  continue  in  his  criminal  career,  he  is  presumed  to 
be  incorrigible,  and  the  law  demands  that  he  shall  be  perma- 
nently secluded  from  association  with  other  persons  that  they 
may  not  be  contaminated  by  his  pernicious  example. 

§  507.  Constitutionality  of  legislation  punishing  habitual 
criminals. — The  statutes  enhancing  the  punishment  upon  a 
subsequent  conviction  are  not  open  to  the  objection  that  they 
are  ex  post  facto  laws,  or  in  the  nature  of  such  laws,  or  that 
they  are  in  any  sense  retrospective  in  their  action.2  Nor  can 

for  any  term  of  years,  shall  have  been        2  Rand  v.  Com.,  9  Gratt.  (Va.)  738 

before  sentenced  to  alike  punishment  People  v.  Raymond,  96  N.  Y.  38,  40 

by  courts  of  this  or  of  any  other  of  Ross'  Case,  2  Pick.  (Mass.)  165,  170 

the  United  States,  whether  such  con-  Ex  parte  Gutierrez,  45  Cal.  429;  Com. 

vict  shall  have  been  pardoned  or  not,  v.  Graves,  155  Mass.  163,  165 ;  Stur- 

he  shall  be  sentenced  to  solitary  im-  tevant  v.  Com.,  158  Mass.  598,  600; 

prisonment,  etc.,  in  addition  to  the  Blackburn  v.  State,  50  Ohio  St.  428, 

punishment  by  law  prescribed  for  the  438 ;     Com.    v.    Getchell,     16    Pick. 

offense  for  which  he  shall  be  tried."  (Mass.)  452,  453. 

lEx  parte  Seymour,  14  Pick.  (Mass.) 
40,  42. 


§  507  EVIDENCE  OF  PREVIOUS  CHIME  TO  INCREASE  PENALTY.  571 

they,  with  justice,  be  regarded  as  inflicting  a  double  punish- 
ment for  the  one  offense,1  or  as  inflicting  a  cruel  or  unusual 
punishment,2  or  as  putting  the  accused  twice  in  jeopardy  for 
the  same  offense.3 


People  v.  McCarthy,  45  How.  Pr. 
Rep.  97  ;  Chenowith  v.  Com.,  12  S.  W. 
Rep.  585 ;  Peoples.  Raymond,  96*N.  Y. 
38,  40 ;  Maguire  v.  State,  47  Md.  485, 
497 ;  Blackburn  v.  State,  50  Ohio  St. 
428,  438;  Rand  v.  Com.,  9Gratt.  (Va.) 
738,  743;  People  v.  Stanley,  47  Cal. 
113,  116;  Ingalls  v.  State,  48  Wis.  647. 
State  v.  Austin,  113  Mo.  538;  Johnson 
v.  People,  55  N.  Y.  512;  Kelly  v.  Peo- 
ple, 115  111.  583;  People  v.  Bosworth, 
64  Hun  (N.Y.)  72;  Com.  v.  Marchand, 
155  Mass.  8,  9;  Com.  v.  Hughes,  133 
Mass.  496,  497 ;  Riley's  Case,  2  Pick. 
(Mass.)  172;  Hopkins  v.  Com.,  3  Mete. 
(Mass.)  460,  467;  State  v.  Benson,  28 
Minn.  424,  425;  Plumbly  v.  Com.,  2 
Mete.  (Mass.)  413,  415. 

2  Moore  v.  Missouri,  159  U.  S.  673, 
677,  16  Sup.  Ct.  Rep.  179;  State  v. 
Hodgson,  66  Vt.  134,  157;  State  v. 
Stanley,  47  Cal.  113,  117. 

3  Moore  v.  Missouri,  16  Supreme 
Court  179,  159  U.  S.  673,  677;  affirm- 
ing Pace  v.  Alabama,  106  U.  S.  583, 
and  Leeper  v.  Texas,  139  U.  S.  462, 
468.  See,  also,  Kelly  v.  People,  115 
111.  583;  Ingalls  v.  State,  48  Wis.  647, 
658 ;  People  v.  Lewis,  64  Cal.  401.  In 
Rand  ».  Com.,  9  Gratt.  (Va.)  738,  on 
page  743,  the  court  says:  "No  con- 
stitutional or  other  obstacle,  however, 
seems  to  stand  in  the  way  of  the  leg- 
islature passing  an  act  declaring  that 
persons  thereafter  convicted  of  cer- 
tain offenses,  committed  after  the 
passage  of  the  act,  may,  if  shown  to 
have  committed  like  offenses  before, 
be  subjected  to  greater  punishment 
than  that  prescribed  for  those  whose 
previous  course  in  life  does  not  indi- 


cate so  great  a  degree  of  moral  de- 
pravity. One  convicted  under  such  a 
statute  can  not  justly  complain  that 
his  former  transgressions  have  been 
brought  up  in  judgment  against  him. 
He  knew,  or  he  is  presumed  to  know, 
before  the  commission  of  the  second 
offense,  all  the  penalties  denounced 
against  it;  and  if,  in  some  sense,  the 
additional  punishment  may  be  said  to 
be  a  consequence  of  the  first  offense 
(inasmuch  as  there  could  be  no  sen- 
tence for  such  punishment  in  the  ab- 
sence of  proof  of  the  first  conviction), 
still  it  is  not  a  necessary  consequence, 
but  one  which  could  only  arise  on  the 
conviction  for  the  second  offense,  and 
one,  therefore,  which,  being  fully  ap- 
prized of  in  advance,  the  offender 
was  left  to  brave  or  to  avoid."  In 
construing  such  a  statute  the  court,  in 
Graves  v.  Com.,  155  Mass.  163,  165, 
said:  "It  is  prospective  and  not  re- 
trospective. It  deals  with  offenders 
after  its  passage,  but  it  provides  that, 
in  considering  the  nature  of  an  offense 
and  the  condition  in  which  the  offen- 
der is  brought  by  it,  that  his  previous 
conduct  may  be  regarded.  *  *  * 
It  is  not  unconstitutional  as  an  ex 
post  facto  law  in  punishing  offenders 
for  offenses  committed  after  its  pas- 
sage, for  a  criminal  habit  whose  ex- 
istence can  not  be  proved  without 
showing  their  voluntary  criminal  act 
done  after  they  are  presumed  to  have 
had  knowledge  of  the  statute.  Such 
anactis  a  manifestation  of  a  habit, 
which  tends  to  establish  and  confirm 
it,  and  for  which  the  wrong-doer  may 
well  be  responsible." 


572  CRIMINAL  EVIDENCE.  §  508 

§  508.  Conviction  of  the  former  crime  must  have  been  prior 
to  the  commission  of  the  crime  now  being  tried. — Many  of  the 
statutes  regulating  the  punishment  of  habitual  criminals  ex- 
pressly declare  that  it  must  appear  in  evidence  that  the 
subsequent  crime  was  committed  after  the  date  of  the  prior 
conviction  of  the  accused.  This  rule  requiring  it  to  be  proved 
that  the  conviction  of  the  earlier  crime  antedates  the  commis- 
sion of  the  later  offense  for  which  the  accused  is  now  on  trial 
would  doubtless  apply  even  where  the  statute  is  silent  on  this 
point,  as  otherwise  the  offender  would  have  had  no  opportunity 
to  reform  because  of  the  salutary  discipline  of  the  punishment 
which  he  has  received  as  a  consequence  of  the  first  convic- 
tion.1 

The  infliction  of  the  increased  punishment  is  a  consequence 
of  the  failure  to  reform  on  the  part  of  the  accused  after  his 
earlier  punishment.  Hence,  if  the  later  crime  has  been  com- 
mitted prior  to  the  conviction,  it  is  no  proof  whatever  that  the 
sentence  and  punishment  under  such  conviction  had  failed  in 
their  reformatory  effect  upon  the  accused.2 

§  509.  Effect  of  pardon  of  former  crime  in  excluding  proof 
of  prior  conviction. — Whether  the  fact  that  the  accused  has 
been  pardoned  for  the  prior  crime  will  prevent  a  conviction  of 
it  from  being  considered  in  enhancing  the  punishment  for  the 
subsequent  one  has  been  differently  determined.  Usually  the 
statute  expressly  provides  that  the  increased  penalty  shall  be 
imposed  irrespective  of  the  mode  in  which  the  accused  has  pro- 
cured his  discharge  from  his  previous  imprisonment.  In  one 
case,  however,  where  the  statute  was  silent,  it  was  held  that, 
as  a  pardon  relieved  the  offender  of  all  the  consequences  of  his 

1  Long  a.  State,  36  Tex.  6;  People  v.  and  that  the  previous  conviction  was 
Butler,  3  Cow.  (N.  Y.)  347;  Brown  «.  required  as  evidence  that  the  mild 
Com.  (Ky.),  37  S.  W.  Rep.  496.  correction  for  one  offense  had  failed 

2  In  Rand  v.  Com. ,"9  Gratt.  (Va.)  of  its  effect;  that  the  legislature  in- 
738,  746-748,  the  court  says:  "The  tended  that  the  culprit  should  first 
statute  intended  that  a  conviction  hear  the  monitory  voice  of  the  law be- 
shonld  precede  the  second  offense ;  fore  the  heavier  doom  should  be  an- 
that   the     mischief   was    a    want    of  nounced." 

reformation  by  the  first  punishment, 


§  510  EVIDENCE  OF  PREVIOUS  CRIME  TO  INCREASE  PENALTY.  573 

crime,  one  of  which  was  his  liability  under  the  statute  to  re- 
ceive an  additional  punishment  in  case  of  a  subsequent  con- 
viction, the  prior  conviction  was  immaterial.1 

But  elsewhere  it  has  been  held  that  a  pardon  can  not  be 
prospective  in  its  operation,  so  as  to  operate  to  relieve  an 
offender  from  the  consequences  of  a  future  infraction  of  the 
criminal  law.  The  increased  punishment  is  not  one  of  the 
consequences  of  the  former  crime  from  which  the  pardon  re- 
lieves the  prisoner,  but  grows  out  of  and  is  the  result  of  his 
failure  to  reform  prior  to  the  latter  offense,  upon  which  the 
pardon  for  an  earlier  crime  can  not  legally  operate.8 

§  510.  Setting  out  the  former  conviction  in  the  indictment 
— Variance. — The  commission  of  the  former  crime  by  the  ac- 
cused, its  nature,  and  the  date  of  its  commission,  together  with 
the  fact  and  date  of  his  conviction  and  sentence,  must  be  set 
forth  at  length  in  the  indictment  or  information.3  This  is  ab- 
solutely essential  in  order  that  the  accused  may  be  properly 
informed  of  the  nature  of  the  allegations  against  him  and  that 
he  may  thus  be  enabled  to  prepare  his  evidence  to  confute  and 
disprove  them.4  It  is  not  necessary  to  set  forth  in  the  indict- 
ment the  entire  record  of  the  former  trial  and  conviction.5  It  is 
enough  if  the  place  and  the  nature  of  the  crime  are  stated  clearly, 
and  the  details  of  the  conviction  and  sentence,  including  the 
date,  are  given  with  such  precision  as  will  enable  the  court  to 
determine  whether  or  no  the  case  is  within  the  statute.6  In 
case  several  prior  convictions  are  alleged  in  the  indictment  it 
is  no  variance  if  only  one  is  proved.7 

1  Edwards  v.  Com.,  78  Va.  39.  6  Wilde  v.  Com.,  2  Mete.   (Mass.) 

2  Mount  v.  Com.,  2  Duv.  (Ky.)  93.        408,  410. 

3Peopleu.  Carlton,  57  Cal.  559.  7Reg.  v.   Clark,  6  Cox  C.   C.  210. 

4Maguirev.  State,  47  Md.  485,  496;  Where  proof    of  a   conviction  for  a 

Plumbly   v.   Com.,   2   Mete.    (Mass.)  term  of  years  is  required,  proof  of  a 

413.     The  general  rule  is  that  the  in-  conviction  for  at  least  two  years  must 

dictment  must  contain  an  averment  of  be  proved.    Exparte  Seymour,  14  Pick, 

every  fact  necessary  to  justify  the  in-  ( Mass.)  40, 42 ;  Ex  parte  Dick,  14  Pick, 

fliction  of  the  proper  punishment.  86,  88. 

5 Plumbly  v.  Com.,  2  Mete.  (Mass.) 
314. 


574  CRIMINAL  EVIDENCE.  §  511 

§511.  Effect  of  plea  of  not  guilty. — Where  a  prior  convic- 
tion is  alleged  in  the  indictment,  a  plea  of  not  guilty  generally 
puts  the  fact  of  prior  conviction  in  issue,  as  well  as  the  com- 
mission of  the  subsequent  crime.1  If  the  accused,  while  plead- 
ing not  guilty,  voluntarily  confesses  a  former  conviction  as 
laid,  it  is  enough,  and  the  jury  may  accept  his  admission  as  con- 
clusive.2 But  when  the  accused,  on  his  arraignment,  pleads  not 
guilty  merely,  and  says  nothing  as  to  his  prior  conviction,  he 
can  not  be  asked  on  arraignment  if  he  has  been  previously 
convicted  of  crime.8 

§  512.  Order  of  trying  the  issue  of  prior  conviction. — Where 
the  accused  pleads  not  guilty  generally  and  an  indictment,  con- 
taining an  allegation  of  his  former  conviction,  is  read  to  the 
jurors,  it  is  extremely  probable  that  the  fact  of  his  former  con- 
viction, as  thus  called  to  their  attention,  will  prejudice  him 
greatly  in  their  minds,  and  tend  to  make  them  think  that  his 
prior  character  is  bad.4  Notwithstanding  this  it  is  always 
proper,  in  the  absence  of  a  statute  providing  a  contrary  rule, 
that  the  indictment  should  be  laid  before  the  jury  and  read  to 
them.  And  usually  the  state  is  permitted  to  put  in  the  record 
of  the  prior  conviction  as  a  part  of  its  case  before  the  verdict 
is  reached  on  the  substantive  crime.5  Often  by  statute  it  is 
enacted  that  if  the  accused  admits  the  prior  conviction,  and 
that  he  was  the  person  thus  convicted,  the  part  of  the  indict- 
ment relating  thereto  need  not  be  read  to  the  jurors,  nor  have 
they  any  right  or  occasion  to  consider  it  in  any  way.  No  evi- 
dence of  any  sort  relating  to  the  prior  conviction  can  then  be 
produced  before  them,  nor  can  they  be  charged  thereon  by  the 
court.6 

People  v.   Carlton,   57    Cal.    559;  3  Ex  parte  Young  Ah  Gow,  73  Cal. 

People  v.  Lewis,  64  Cal.  401;  People  438,  446;  People  v.  King,  64  Cal.  338. 

v.  Gutierrez,  74  Cal.  81,  83;   Ex  parte  4  Com.  v.  Morrow,  9  Phila.  583. 

Young  Ah  Gow,  73  Cal.  438,  442,  445;  5  Maguire  v.  State,  47  Md.  485,  497; 

Hines  v.   State,  26  Ga.  614.     Contra  State  v.  Manecke  (Mo.,  1897),  41  S. 

Thomas  v.  Com.,  22  Gratt  (Va.)  912,  W.  Rep.  223. 

916.  6  People  v.  Meyer,  73  Cal.  548,  549, 

2  Ex  parte  Young  Ah  Gow,  73  Cal.  550 ;  Ex  parte  Young  Ah  Gow,  73  Cal. 

438.  438,  443-451,  construing  sections  1093, 

1158  of  California  Code. 


§  513    EVIDENCE  OF  PREVIOUS  CRIME  TO   [NCREA8E  PENALTY.    575 

By  virtue  of  the  discretionary  power  of  the  court  to  regulate 
its  own  procedure,  the  court  may  withhold  from  the  jurors  the 
issue  of  former  conviction  until  after  a  verdict  is  reached,  and 
may  then  determine  the  issue  by  taking  judicial  notice  of  the 
prior  conviction,  or  by  the  production  of  the  record.  But 
where  this  is  done  it  may  be  that  the  issue  of  the  identity  of 
the  accused  with  the  man  mentioned  in  the  record  may  come 
up,  and  this  issue  of  identity  can  not  then  be  tried  by  the  jury 
to  whom  it  of  right  belongs. 

In  England  it  is  provided  by  statute1  that  the  accused  shall 
only  be  called  on  to  plead  to  so  much  of  the  indictment  as 
charges  the  subsequent  offense.  If  he  pleads  guilty,  or  is 
found  guilty,  he  shall  then  be  asked  whether  he  has  previously 
been  convicted,  and  if  he  denies  that  he  has  the  jury  may  de- 
termine the  fact.2 

§  513.  Necessity  of  proving  discharge  from  prison. — Where 
the  statute  provides  in  terms  for  a  subsequent  crime  com- 
mitted "after  a  conviction  and  a  discharge  from  prison,  by 
reason  of  expiration  of  sentence  or  pardon,"  it  will  be  neces- 
sary not  only  to  prove  the  conviction  but  the  discharge  from 
prison  as  well.  The  fact  of  the  expiration  of  the  term  of  im- 
prisonment or  the  pardon  is  material  and  must  be  affirmatively 
proved.  Neither  can  be  presumed  from  mere  lapse  of  time,  so 
as  to  require  that  the  accused  shall  be  compelled  to  prove  that 
he  was  not  discharged.3  The  fact  of  the  discharge  may  be 
proved  by  a  certified  copy  of  the  prison  record  where  such  a 
record  is  admissible  by  statute,  or  by  the  oral  testimony  of  a 
prison  official  who  has  a  competent  knowledge  of  the  fact. 
The  mode  of  proving  pardons  is  elsewhere  fully  elucidated.4 

§  514.  Proof  of  the  prior  conviction — How  made. — The  prior 
conviction  of  the  accused  can  only  be  proved  by  the  produc- 
tion in  court  of   an  attested  or  duly  authenticated  copy  of  the 

J24  and  25  Vic,  ch.  96,  §  116,  and        3Wood  v.  People,  53  N.  Y.  511,  514. 
ch.  99,  §  37.  4  See  ante,  §  208. 

2  Reg.  v.  Fox,  10  Cox  C.  C.  502 ;  Reg. 
v.  Martin,  L.  R.  1  C.  C.  214. 


576  CRIMINAL  EVIDENCE.  §  515 

record,  which  usuall}'  must  be  certified  as  a  true  copy  by  the 
clerk,  under  the  seal  of  the  court,  if  it  have  a  seal.1  Some- 
times the  docket  entries  of  the  clerk  have  been  received  when 
no  other  record  has  been  kept,  or  where  the  record  was  not 
made  up.2  And  in  case  documentary  evidence  can  not  be  pro- 
cured the  prior  conviction  may  be  proved  by  parol,  if  no  objec- 
tion is  made.3 

The  issue  of  the  prior  conviction  of  the  prisoner  is  for  the 
jury,  involving,  as  it  does,  a  question  of  the  identity  of  the  per- 
son now  accused  with  the  person  whose  name  is  mentioned  in 
the  record  of  the  prior  conviction.4  It  has  been  held  that 
proof  of  a  prior  conviction  is  not  open  to  the  objection  that  it 
tends  to  prejudice  the  jury  by  showing  that  the  accused  has 
been  guilty  of  a  separate  and  independent  crime ;  or  because  it 
tends  to  establish  his  bad  character  before  he  has  put  his 
character  in  issue,  as  the  purpose  of  this  evidence  is  not  solely 
to  prove  bad  character.5 

§  515.  Proof  of  the  identity  of  the  accused  with  the  person 
previously  convicted. — The  question  whether  the  person  who 
was  convicted  at  the  former  trial  is  identical  with  the  person 
who  is  now  accused,  and  who  is  now  on  trial,  is  one  of  fact  for 
the  jury.6  The  defendant's  admission  of  identity  will  be  suf- 
ficient to  establish  it.7  But,  in  the  absence  of  this,  the  identity 
must  be   proved.8     The  identity  of  the  name  of  the   convict 

1  Maguire  v.  State,  47  Md.  485,497;  State  v.  Robinson,  39  Me.  150,  155; 
Reg.  v.  Clark,  20  Eng.  L.  &  E.  582;  State  v.  Spaulding,  61  Vt.  505;  State 
Corn.  v.  Miller,  8  Gray  (Mass.)  484,  v.  Freeman,  27  Vt.  523,  527 ;  State  v. 
485;  Kane  v.  Corn.,  109  Pa.  St.  541,  Haynes,  35  Vt.  570,  572;  Rector  v. 
545;  Com.  ^.Phillips,  11  Pick.  (Mass.)  Com.,  SO  Ky.  468,  471;  Maguire  v. 
28,   30;    Com.    v.   Hughes,  133  Mass.  State,  47  Md.  485,  497. 

496,  497;  Rector  v.  Com.,  80  Ky.  468,  5  Johnson  v.  People,  55  N.  Y.  512, 
470,  construing  Kentucky  General  514,  affirming  65  Barb.  342,  and  corn- 
Statutes,  chap.  25,  art.  1,  §12.  pare  Kane  v.  Com.,  109  Pa.  St.  541, 

2  State   v.   Hines,   68  Me.  202,  203;  545. 

State  v.  Neagle,  65  Me.  468,  469.  6  State  v.  Freeman,  27  Vt.  523 ;  State 

"State  v.  Rockett,  87  Mo.  666.    The  v.  Haynes,  35  Vt.  570,  572. 

certificate  of  the  clerk  need  not  show  7Kane  v.  Com.,  109  Pa.  St.  541,  545. 

that    a    sentence   was  had.     States.  8Com.  v.  Briggs,  7  Pick.  (Mass.)  177, 

Hines,  68  Me.  202,  203.  179;  Reg.  v.  Leng,  1  F.  &  F.  77. 
4  State  v.  Lashus,  79  Me.  504,  506 ; 


§.")!")    EVIDENCE  OF  PREVIOUS  CRIME  TO   ENCREASE   PENALTY.    577 


mentioned  in  the  record  with  the  name  of  the  prisoner  at  the 
bar,  is  some  evidence  of  identity  of  person.  Whether  it  shall 
be  conclusive  depends  on  the  connecting  circumstances.1  In 
most  cases,  however,  identity  of  name  alone  is  not  sufficient, 
hut  ought  to  be  supplemented  by  other  evidence,  preferably  by 
that  of  an  eye  witness  of  the  former  trial  or  by  that  of  some 
acquaintance  of  the  prisoner.2 

It  is  never  necessary  to  produce  an  eye  witness  who  can 
swear  of  his  own  knowledge  that  he  saw  the  accused  convicted/ 
The  proof  of  the  identity  may  relate  to  the  identity  while  the 
accused  was  in  custody  under  the  prior  sentence.4  In  conclu- 
sion it  may  be  said  that  the  principal  crime  charged  for  which 
the  accused  is  now  on  trial  will  be  presumed  to  be  the  only 
one  that  the  accused  has  ever  committed  until  the  contraiy  is 
proved.5 


1  State  v.  Lashus,  79  Me.  504,  506. 

2  See,  also,  ante  cases,  cited  page 
445,  note  12,  as  to  identity  of  persons 
named  in  marriage  certificates.  In 
the  case  of  State  v.  Lashus,  79  Me. 
504,  506,  the  court  said:  "The  iden- 
tity of  the  person  on  trial  with  him 
named  in  the  record  is  a  question  of 
fact.  Identity  of  name  is  some  evi- 
dence of  identity  of  person,  more  or 
less  potent  according  to  connecting 
circumstances,  hut  it  is  not,  certainly 
in  this  case,  conclusive  to  authorize 
the  court  to  take  it  from  the  jury." 

3  Reg.  v.  Leng,  1  F.  &  F.  77,  78. 

4  Thus,  in  an  English  case,  evidence 
that  the  prisoner  was  hrought  to  the 
Leeds  Borough  Gaol  under  a  warrant 
which  is  produced,  which  is  signed 
by  the  same  magistrate,  which  hears 
the  same  date,  having  the  same  names 
of  prosecutor  and  prisoner,  and  for 

37— Cr.  Ev. 


the  same  offense,  and  having  the 
same  kind  and  duration  of  punish- 
ment as  was  imposed  under  the  com- 
mitment, and  which  are  recited  in 
the  certificate  of  the  record,  has  been 
held  sufficient  to  prove  identity.  Reg. 
v.  Leng,  1  F.  &  F.  77,  78.  In  Reg.  v. 
Crofts,  9  C.  &  P.  219,  the  governor  of 
the  gaol  was  permitted  to  testify  on 
the  issue  of  identity  as  follows :  "The 
prisoner  was  in  my  custody  hefore 
the  Newmarket  Borough  Sessions,  in 
October,  1837  ;  I  sent  him  to  Newbury 
at  that  time;  I  was  not  at  the  trial, 
but  received  him  back  with  an  order 
from  the  Newbury  Sessions,  and  he 
remained  in  my  custody  for  four 
months  under  that  sentence."  This 
was  held  sufficient. 

5  Kilbourn  v.  State,  9  Conn.  560,  563 ; 
People  v.  Cook,  45  Hun  (N.Y.)  34,  37 ; 
1  Bish.  Cr.  Law  961. 


CHAPTER  XXXIV. 


NEWLY-DISCOVERED  EVIDENCE. 


§  516.   General  considerations.  §  520. 

517.  Diligent  efforts  to  find  and  to 

procure  the  evidence  in  sea- 
son must  be  shown.  521. 

518.  Burden    of    proof — The     new 

evidence  must  be  set  out  in        522. 
the  affidavits. 

519.  Credibility   of     the   new   evi- 

dence. 


Materiality  and  relevancy  of 
the  newly-discovered  evi- 
dence. 

New  evidence  impeaching 
merely. 

The  new  evidence  must  not  be 
cumulative  merely. 


§  516.  General  considerations. — In  the  absence  of  a  permis- 
sive statute,  a  court  has  no  power  to  grant  a  new  trial  in  case 
of  a  felony  on  account  of  newly-discovered  evidence.  As 
regards  misdemeanors,  a  court  possessing  general  jurisdiction 
has  inherent  power  at  common  law  to  grant  a  new  trial  on 
motion,  if  it  shall  appear  that  justice  will  be  advanced  thereby. 
So  far  as  felonies  are  concerned,  the  right  of  the  accused  to  a 
new  trial,  upon  the  grounds  of  newly-discovered  evidence, 
is  wholly  the  creature  of  statutes,  which  usually  provide  for 
the  cases  in  which  the  right  may  be  recognized,1  and  the  mode 
in  which  its  exercise  may  be  secured.  The  right  to  a  new 
trial  is  never  absolute.  Whether  a  new  trial  shall  be  granted 
upon  the  grounds  of  newly-discovered  evidence  is  in  the  legal 


1 "  Where  it  is  made  to  appear  by 
affidavits  that,  upon  another  trial,  the 
defendant  can  produce  evidence,  such 
as,  if  before  received,  would  probably 
have  changed  the  verdict,  if  such  evi- 
dence has  been  discovered  since  the 
trial,  is  not  cumulative,  and  the  fail- 
ure to  produce  it  on  the  trial  was  not 
owing    to    want   of   diligence.      The 

(578) 


court  in  such  cases  can,  however, 
compel  the  personal  appearance  of 
the  affiants  before  it,  for  the  purpose 
of  their  personal  examination  and 
cross-examination  under  oath,  upon 
the  contents  of  the  affidavits  which 
they  subscribe."  N.  Y.  Code  Crimi- 
nal Procedure,  §  465,  subd.  7. 


§517 


NEWLY-DISCOVERED    EVIDENCE. 


570 


discretion  of  the  court.  If  this  discretion  is  exercised  in  a 
legal  and  proper  manner,  the  action  of  the  court  denying  a 
motion  for  a  new  trial  is  not  reversible.  But  if  the  discretion 
of  the  court  is  exercised  arbitrarily  or  capriciously,  or  in  such 
a  manner  as  to  work  a  manifest  injustice  to  an  innocent  per- 
son, so  that  it  can  be  said  to  be  clearly  and  unmistakably 
abused,  the  action  of  the  court  will  not  be  regarded  as  final.1 

§  517.  Diligent  efforts  to  find  and  to  procure  the  evidence 
in  season  must  be  shown. — The  accused,  when  moving  for  a 
re-trial  upon  the  grounds  of  newly-discovered  evidence,  must 
show  by  affidavits  that  he  used  due  diligence  to  procure  the 
evidence  in  time  for  use  at  the  trial  if  he  knew  of  its  existence 
prior  to  his  conviction.     He  must  state  facts  in  the  affidavits 


People  v.  Trezza,  128  N.  Y.  529,  8 
N.  Y.  Cr.  291,  295;  People  v.  Lane,  31 
Hun  13,  15;  Com.  v.  Ruisseau,  140 
Mass.  363,  365;  Peoples.  Demasters, 
109  Cal.  607,  608;  People  v.  Urquidas, 
96  Cal.  239,  242;  People  v.  Sutton,  73 
Cal.  243;  United  States  v.  Williams,  1 
Cliff.  C.  C.  250,  255.  It  may  be  well 
in  this  place  to  call  attention  to  the 
rule  which,  in  the  absence  of  a  stat- 
ute prescribing  when  a  motion  for  a 
new  trial  must  be  made,  requires  that 
it  shall  be  made  before  the  expiration 
of  the  term  at  which  the  trial  was 
had.  People  v.  Bradner,  107  N.  Y.  1 ; 
People  v.  Hovey,  30  Hun  (N.  Y.)  354; 
Ex  parte  Holmes,  21  Neb.  324,  32  N. 
W.  Rep.  69.  In  Chandlers.  Thomp- 
son, 30  Fed.  Rep.  38,  the  court,  on 
page  44,  says:  "The  statute  confer- 
ring jurisdiction  upon  the  Federal 
courts  to  grant  new  trials  expressly 
provides  that  such  power  should  be 
exercised  '  for  reasons  which  new 
trials  have  been  usually  granted  in 
courts  of  law.'  This  provision  ap- 
plies only  to  jury  trials,  and  is  direc- 
tory to  the  courts,  to  be  governed  by 
the  rules  and  principles  of  the  com- 


mon law.  The  courts  of  the  common 
law  have  usually  granted  new  trials ; 
when  the  verdict  is  against  the  weight 
of  the  evidence,  or  contrary  to  law ; 
*  *  *  for  the  admission  of  illegal 
evidence,  or  the  rejection  of  compe- 
tent evidence,  when  a  party  has  been 
deprived  of  evidence  by  accident  and 
without  fault  on  his  part,  or  is  taken  by 
surprise  in  a  matter  that  he  could  not 
reasonably  anticipate,  for  misdirec- 
tion upon  material  questions  of  law, 
or  for  serious  irregularity  in  the  trial 
or  misconduct  of  the  jury,  for  unfair 
conduct  of  the  prevailing  party,  when 
manifest  injustice  has  been  done, 
when  the  losing  party  has  discovered 
material  evidence  since  the  trial  and 
he  satisfies  the  court  that  he  had  used 
due  diligence  in  preparing  his  case 
for  trial,  that  the  newly-discovered 
evidence  will  tend  to  prove  a  material 
fact  which  was  not  directly  in  issue 
on  the  trial  or  which  was  not  then 
known  or  investigated  by  proof,  and 
which  will  probably  produce  a  differ- 
ent result,  *  *  *  and  is  not  merely 
cumulative." 


580  CRIMINAL  EVIDENCE.  §  517 

explicitly  and  specifically  accounting  for  his  failure  to  produce 
such  evidence  and  constituting  a  proper  degree  of  diligence  on 
his  part.1  A  mere  allegation  that  he  used  due  diligence  will 
not  suffice.  The  affiant  ought  to  set  forth  at  reasonable  length 
and  with  some  particularity  the  various  measures  resorted  to 
by  him  to  procure  the  production  of  the  evidence  at  his  trial. 
He  ought  also,  if  it  is  possible,  to  state  the  reasons  why  his 
efforts  were  not  successful.  But  he  must  state  facts,  and  not 
mere  conclusions,  opinions  or  guesses.2 

The  reasons  for  requiring  the  exercise  of  diligence  by  the 
accused  in  this  connection  are  obvious.  If  the  existence  and 
the  character  of  the  evidence  were  known  to  him  while  his 
trial  was  pending,  and  if  he  could  have  procured  it  in  season 
by  the  exercise  of  diligence,  it  was  his  duty  to  do  so  at  the 
earliest  opportunity.  A  person  indicted  for  a  crime  and  on 
trial  can  not  be  allowed  to  speculate  upon  the  outcome  of  his 
trial  and  to  hold  back  evidence  which  he  may  easily  procure, 
with  the  hope  and  expectation  that,  should  the  proof  against 
him  be  more  convincing  than  he  anticipates,  he  can  put  the 
state  to  the  additional  expense  of  another  trial,  at  which  the 


1  State  v.  Hall  (Iowa,  1897),  66  N.  State  v.  Musick,  101  Mo.  260,  4  S.  W. 

W.  Rep.  725;  Sconyers  v.  State,   85  Rep.  212 ;  State  v.  Lichliter, 95  Mo.  402, 

Ga.  672,  678,  12  S.  E.  Rep.  1069 ;  Lynch  408,  8  S.  W.  Rep.  720 ;  State  v.  Keav- 

v.  State,  84  Ga.  726,  730,  11  S.  E.  Rep.  eny  (La.,  1897),  21  So.  Rep.  730;  State 

842;  Statham  v.  State,  86  Ga.  331,  12  v.  Hanks,  39  La.  An.  234,  236;    State 

S.  E.  Rep.  640;  Ford  v.  State,  91  Ga.  v.    Washington,     36     La.     An.     341; 

162,  164,  17  S.  E.  Rep.  103;  Gaddis  v.  People  v.   McCurdy,  68  Cal.   576,  10 

State,  91  Ga.  148,  151,  16  S.  E.  Rep.  Pac.  Rep.  207;  People  v.  Jones  (Cal.), 

936;  Meurer  v.  State,  129  Ind.  587,  29  8  Pac.  Rep.  611;  People  v.  Freeman, 

N.  E.  Rep.  392 ;  Aholtz  v.  People,  121  92  Cal.  359,  28  Pac.  Rep.  261 ;  Klink  v. 

111.  560,  13  N.  E.  Rep.  524;  Bean  v.  People,  16  Colo.  467,  27  Pac.  Rep.  1062. 
People,  124  111.  576,  585,  16  N.  E.  Rep.        2  State  v.  Crawford,  99  Mo.  74,  80,  12 

656;  States.  Koontz,  31  W.  Va.  127,5  S.  W.  Rep.  354.     Where  the  accused 

S.  E.  Rep.  328;  Field  v.  Com.,  89  Va.  submits     proper    affidavits    showing 

690,  694;    State  v.  Gunagy,  84  Iowa  facts    constituting    diligence    on  his 

177,   182,   183,   50    N.   W.   Rep.   582;  part,  the  state  may  offer  counter  affi- 

Washington  v.  State  (Tex.),  32  S.  W.  davits  for  the  purpose  of  proving  that 

Rep.  693 ;  Bell  v.  State  (Tex.),  20  S.W.  he  did  not  use  due  diligence.    Smith 

Rep.   362;    McVey  v.   State,  23  Tex.  v.  State,  143  Ind.  685,687;  People  r. 

App.  659,  5  S.  W.  Rep.  174;  State  v.  Cesena,  90  Cal.  381,  383. 
Moses  (Mo..  1897),  40  S.  W.  Rep.  883; 


§518  NEWLY-DISCOVERED    EVIDENCE.  581 

evidence  that  he  has  suppressed  can  be  introduced.  The  law 
favors  a  full  discovery  of  all  relevant  evidence  which  has  a 
bearing  upon  the  criminality  of  the  defendant.  It  will  not 
permit  the  accused  to  mask  his  batteries,  and,  having  thus 
drawn  all  the  fire  of  the  prosecution,  he  can  not,  after  having 
been  convicted,  take  the  chances  of  a  new  trial  in  which  every- 
thing would  be  in  his  favor. 

Hence  the  relevancy  of  the  evidence,  its  cogency  and  credi- 
bility, and  even  the  reasonable  probability  that  its  introduc- 
tion, \i  a  new  trial  is  granted,  may  result  in  the  acquittal  of 
the  accused,  will  not  relieve  him  from  the  consequences  of  his 
prior  laches. 

§  518.  Burden  of  proof — The  new  evidence  must  be  set  out 
in  the  affidavits. — The  burden  of  proof  to  show  that  the  ac- 
cused has  complied  with  all  the  requirements  of  the  law  is  on 
the  party  moving  for  the  new  trial.1  The  motion  for  a  new 
trial  must  be  accompanied  by  and  be  based  upon  a  proper 
affidavit,  sworn  to  by  the  accused,  showing  in  detail  all  the 
essential  jurisdictional  facts,  unless  some  valid  reason  exists 
for  its  non-production.2 

So,  too,  all  the  facts  which  constitute  the  newly-discovered 
evidence  ought  to  be  set  forth  at  reasonable  length  either  in 
the  affidavit  of  the  accused,  or  in  an  affidavit  of  the  witness 
whom  he  expects  to  testify  to  them.  This  is  absolutely  neces- 
sary in  order  that  the  court  may  ascertain  the  materiality  and 
credibility  of  the  testimony,  and  may  determine  if  it  be  cumu- 
lative or  not.3 

People  v.  Fice,  97  Cal.  459,  32  Pac.  W.  Rep.  883;   State  v.  Hollier  (La., 

Rep.  531.  1897),  21  So.  Rep.  633;  People  r.  Ep- 

» State  v.  Laycock,  136  Mo.  93,  100,  pinger  (Cal.,  1897),  46  Pac.  Rep.  97; 
37  S.  W.  Rep.  802;  State  v.  Nagel,  136  Richardson  v.  State,  47  Ark.  562,  2  S. 
Mo.  45,  50,  37  S.  W.  Rep.  821 ;  State  v.  W.  Rep.  187.  In  a  case  where  the 
McLaughlin,  27  Mo.  Ill;  State  v.  accused  moved  for  a  new  trial  on  the 
Campbell,  115  Mo.  391,393;  State  v.  ground  that  another  person  had  con- 
Ray,  53  Mo.  345;  Weeks  v.  State,  79  fessed  the  commission  of  the  crime  of 
Ga.  36,3  S.  E.  Rep.  323;  Dean  v.  State,  which  he  stood  convicted,  he  was  re- 
93  Ga.  184,  18  S.  E.  Rep.  557.  quired   to   state   in   his   affidavit  the 

3  State  u.Moses   (Mo.,   1897),  40  S.  name  of  the  person,  his  residence  and 


582  CRIMINAL  EVIDENCE.  §  519 

§  519.  Credibility  of  the  new  evidence. — As  a  result  of  the 
requirement  that  the  new  evidence  must  be  such  as  would,  had 
it  been  introduced  at  the  trial,  have  probably  resulted  in  the 
acquittal  of  the  accused,  it  is  necessary  that  it  shall  appear  to 
the  court  hearing  the  motion  that  it  is  probably  true.1 

The  witness,  who  is  expected  to  testify,  must  appear  to  the 
court  to  be  credible.  His  credibility  is  to  be  determined  by  the 
judge  hearing  the  motion,2  who  may  examine  him  in  open 
court,  and  he  may  also  examine  any  other  person  who  has 
made  an  affidavit  which  is  offered  to  support  the  motion  in  or- 
der to  test  his  credibility.3  And  the  prosecuting  attorney  may 
submit  affidavits  of  persons  who  know  the  reputation  for 
veracity  of  the  proposed  witness,  and  who  are  able  and  willing 
to  swear  that  they  would  not  believe  him  under  oath.4 

The  admission  by  a  witness  for  the  prosecution  that  he  had 
sworn  falsely  at  the  trial  does  not  alone  constitute  new  evi- 
dence. Even  though  he  shall  state  that  he  deliberately  gave 
false  testimony  to  some  material  facts,  and  it  shall  also  appear 
that  the  conviction  of  the  accused  was  largely  owing  to  .his 
testimony,  it  does  not  follow  that  a  retrial  ought  to  be  had  ; 
for  the  court  may  not  believe  his  present  statement  is  true  and 
made  in  good  faith.  But  if  the  present  statement  of  the  wit- 
ness is  so  far  contradictory  of  his  previous  testimony  as  to 
wholly  obliterate  it  and  destroy  its  effect,  the  court  ought  to 
grant  a  retrial  if  it  believes  the  statement  to  be  credible.5 

whether  his  attendance  could  be  pro-  449;  People  v.  Noonan,  38  St.  Re- 
cured  in  season.  State  v.  Miller,  porter  (N.  Y.)  854;  People  v.  Lane,  1 
3  Wash.  St,  131,  28  Pac.  Rep.  375.  N.  Y.  Cr.  Rep.  548, 31  Hun  13. 

1  Lawrence  v.  State  (Tex.,  1897),  36  2People  v.  Shea,  16  Misc.  Rep.  Ill, 

S.  W.  Rep.  90;  Clark  v.  State  (Tex.,  38  N.  Y.  Supp.  821. 

1897),40  S.W.  Rep.  992;  Grant  v.  State,  3Mooreu.State,96Tenn.209,33S.W. 

97  Ga.  789,  25  S.  E.  Rep.  939 ;  People  v.  Rep.  1046 ;  Glidewell  v.  State,  15  Lea 

Mayhew,  19  Misc.  Rep.  313,  44  N.  Y.  (Term.)    133,    N.   Y.    Code  Cr.  Pro., 

Supp.  206,  construing  Code  Crim.  Pro.,  §465,  and  see  United  States  v.  Angney, 

§  465,  subd.  7  ;  Johnson  v.  State,  85  Ga.  15  Wash.  Law  Rep.  560. 

561, 11  S.  E.  Rep.  844;  Neill  v.  State,  4  Grant  v.  State,  97  Ga.  789,  25  S.  E. 

79  Ga.  779,  4  S.  E.  Rep.  871 ;  State  v.  Rep.  939. 

Tall,   43  Minn.  273,   45  N.  W.  Rep.  5  Dennis  v.  State,  103  Ind.  142,  151. 


§520  NKWLY-DISCOVKRED    KVIDKMi;.  583 

§520.  Materiality  and  relevancy  of  the  newly-discorered 
evidence. — The  accused  must  show  by  affidavits  that  the  Dew 

evidence  would  have  been  materia]  if  it  hud  been  offered  at  his 
trial  and,  had  it  been  produced  and  admitted,  that  it  would 
have  probably  resulted  in  his  acquittal.1  It  must  appear  to 
the  satisfaction  of  the  court  that,  if  a  new  trial  is  granted,  it  is 
reasonably  probable  that,  on  the  introduction  of  the  new  evi- 
dence, the  accused  will  be  acquitted.  If  the  new  evidence  is 
so  weak,  unsatisfactory  or  inconclusive,  or  if  it  is  so  far  recon- 
cilable with  the  guilt  of  the  accused,  that  it  will  not  bring 
about  a  different  result,  then,  as  a  new  trial  would  be  useless, 
it  will  not  be  granted. 

The  moving  party  must  show  that  the  new  evidence  would 
have  been  admitted  as  relevant  to  show  his  innocence  had  it 
been  offered  on  his  former  trial.  The  irrelevancy  of  the  evi- 
dence alone  may  prevent  the  granting  of  a  new  trial.  On  the 
other  hand  mere  relevancy  alone  is  not  sufficient  to  admit  the 
evidence  if  it  is  incredible,  cumulative,  unconvincing  or  oth- 
wise  unsatisfactory.2 

§521.  New  evidence  impeaching  merely. — A  motion  for  a 
new  trial  ought  to  be  denied  where  the  evidence  which  the 
accused  proposes  to  introduce  merely  impeaches  that  of  a  wit- 
ness at  the  former  trial  whose  evidence  was  credible  or  fully 
corroborated.3 

1  Field  v.  Com.,  89  Va.  690,  695;  Va.  690,  694,  16  S.  E.  Rep.  865;  State 
People  v.  Lane,  1  N.  Y.  Cr.  Rep.  554,  Keaveny  (La.,  1897),  21  So.  Rep.  730; 
31  Hun  13;  Tolleson  ».  State,  97  Ga.  Briscoe  v.  State  (Ga.,  1896),  20  S.  E. 
352,  23  S.  E.  Rep.  993;  State  v.  Arm-  Rep.  211.  Where  the  new  evidence 
strong,  48  La.  An.  314,  19  So.  Rep.  presents  a  theory  of  the  case  utterly 
146;  People  v.  Stanford,  64Cal.  27,  28  at  variance  with  the  statement  of  the 
Pac.  Rep.  106;  Cooper  v.  State,  91  Ga.  accused  which  he  made  at  his  trial, 
362,  18  S.  E.  Rep.  303;  Williams  v.  the  new  trial  was  held  to  he  properly 
United  States,  137  U.S.  113;  11  Sup. Ct.  refused.  Grant  v.  State,  97  Ga.  789, 
43 ;  State  v.  Foster,79  Iowa  726,45 N.W.  25  S.  E.  Rep.  399. 

Rep.  385;  United  States  v.  Smith,  1  "Fletcher    v.   People,   117  111.    184, 

Sawyer  277;  United  States  v.  Gibert,  189,  7  N.  E.   Rep.  80;   Hudspeth   o. 

2  Sumn.  19.  State.  55  Ark.  323,  18  8.  W.  Hep.  L83; 

2  Humphrey  ».  State,  78  Wis.  569,  State  v.  Potter,  108  Mo.  424.  22  8.  W. 
47  N.W.  Rep.  836;  Field  v.  Com.,  89  Rep.  89;  State  v.  PottB,  83  Iowa  317; 


584 


CRIMINAL    EVIDENCE. 


§  522 


§522.    The  new  evidence  must  not  be  cumulative  merely. — 

A  motion  for  a  new  trial  on  the  ground  of  newly-discovered 
evidence  must  be  denied,  if  it  appears  to  the  court  that  the  evi- 
dence would  have  been  cumulative  merely  if  it  had  been  in- 
troduced at  the  trial.1 

The  court  must  decide  whether  the  evidence  offered  is  cumula- 
tive. Cumulative  evidence  is  additional  evidence  tending  to 
prove  facts  of  the  same  general  character  as  those  supported 
by  other  evidence  previously  produced.     Such  evidence  merely 


Pease  v.  State,  91  Ga.  18,  19,  16  S.  E. 
Rep.  113;  Marable  v.  State,  89  Ga. 
425,  15  S.  E.  Rep.  453;  Statham  v. 
State,  84  Ga.  17,  10  S.  E.  Rep.  493; 
Reid  v.  State,  81  Ga.  760,  8  S.  E.  Rep. 
431;  Dominick  v.  State,  81  Ga.  715,  8 
S.  E.  Rep.  432 ;  Johnson  v.  State,  83 
Ga.  553,  10  S.  E.  Rep.  207;  Ramsey  v. 
State,  89  Ga.  198,  202,  205 ;  Sutherlin  v. 
State,108  Ind.  389,391,9 N.  E.  Rep.  298 ; 
Meurer  v.  State,  129  Ind.  587, 588,  29  N. 
E.  Rep.  392 ;  Evans  v.  State,  67  Ind.  68 ; 
Winsett  v.  State,  57  Ind.  26;  Grate  v. 
State,  23 Tex.  App  458,5  S.W.  Rep.  245 ; 
People  v.  Loui  Tung,  90  Cal.  377,  27 
Pac.  Rep.  293;  Field  v.  Com.,  89  Va. 
mo,  694;  Whitehurst's  Case,  79  Va. 
556,  559;  Read  v.  Com.,  22  Gratt. 
(Va.)  924;  State  v.  Chambers,  43  La. 
An.  1108,  10  So.  Rep.  886.  In  case  the 
new  evidence  would  be  merely  cumu- 
lative, or  would  only  serve  the  pur- 
pose of  impeachment,  a  new  trial 
should  not  be  granted  though  the 
party  was  surprised  by  the  witness 
who  is  to  be  impeached.  Meurer  v. 
State,  129  Ind.  587,  588. 

People  v.  Demasters,  109  Cal.  607, 
608,  42  Pac.  Rep.  236;  People  v.  Ce- 
sena,  90  Cal.  381,  383,  27  Pac.  Rep. 
300;  People  v.  Urquidas,  96  Cal.  239, 
242,  31  Pac.  Rep.  52;  People  v.  Hong 
Quin  Moon,  92  Cal.  41,  27  Pac.  Rep. 
1096;  Langdon  v.  People,  133  111.  382, 
409,  24  N.  E.  Rep.  874;  Fletcher  v. 
People,  117  111.  184,  7  N.  E!  Rep.  80; 


Stalcup  v.  State,  129  Ind.  519,  522,  28 
N.  E.  Rep.  1116;  Sutherlin  v.  State, 
108  Ind.  389,  391,  9  N.  E.  Rep.  298; 
Meurer  v.  State,  129  Ind.  587,  29  N. 
E.  Rep.  392 ;  Smith  v.  State,  143  Ind. 
685,  688,  42  N.  E.  Rep.  913;  State  v. 
Tyson,  56  Kan.  686,  44  Pac.  Rep.  609, 
6S9;  State  v.  Rohrer,  34  Kan.  427; 
State  v.  Stickney,  53  Kan.  308;  State 
v.  Gleason,  68  Iowa  618,  619;  State  v. 
Johnson,  72  Iowa  393,  401,  34  N.  W. 
Rep.  177;  State  v.  Potts,  83  Iowa  317, 
319;  State  v.  Whitmer,  77  Iowa  557, 
560,  42  N.  W.  Rep.  442;  Scruggs  v. 
State  (Tex.,  1896),  34  S.  W.  Rep.  951  ; 
King  v.  State,  91  Tenn.  617;  People  v. 
Peacock,  5  Utah  240, 14  Pac.  Rep.  332; 
United  States  v.  Eldredge,  5  Utah  189, 
13  Pac.  Rep.  673;  Casey  v.  State,  20 
Neb.  138,  29  N.  W.  Rep.  264;  State  v. 
Hendrix,  45  La.  An.  500,  12  So.  Rep. 
621 ;  State  v.  Hanks,  39  La.  An.  234, 
236;  State  v.  Lamothe,  37  La.  An.  43, 
44;  Williams  v.  Com.  (Ky.),  18  S.  W. 
Rep.  364;  State  v.  Woodward,  95  Mo. 
129,  8  S.  W.  Rep.  220;  Tripp  v.  State, 
95  Ga.  502,  20  S.  E.  Rep.  248;  Dale  v. 
State,  88  Ga.  552,  561,  15  S.  E.  Rep. 
287 ;  Greer  v.  State,  87  Ga.  559,  13  S. 
E.  Rep.  552;  Neill  v.  State,  79  Ga.  779, 
4  S.  E.  Rep.  871;  Bond  v.  Com.,  83 
Va.  581,  3  S.  E.  Rep.  149;  State  v. 
Starnes,  97  N.  Car.  423,  2  S.  E.  Rep. 
447;  State  v.  Workman,  39  S.  Car.  151, 
17  S.  E.  Rep.  694;  People  v.  Noonan, 
38  N.  Y.  St.  Rep.  854. 


§  522 


NKWLY-DISCOYKKKD     KVIDEN(   E. 


repeats  in  substance  and  effect  what  has  already  been  put  in 
proof  by  other  evidence  of  the  same  character.  Thus,  for  ex- 
ample, if  the  accused  has  endeavored  to  prove  an  alibi  at  his 
trial,  and  for  this  purpose  has  introduced  the  testimony  of  one 
or  more  witnesses  who  have  sworn  that,  at  the  time  of  the 
crime,  he  was  in  another  place,  the  evidence  of  another  wit- 
ness that,  at  the  same  time,  he  had  seen  him  in  that  place 
would  clearly  be  cumulative.  Or,  if  the  issue. in  the  trial  was 
his  insanity,  and  he  had  called  medical  experts  to  sustain  li is 
allegation  of  mental  incapacity,  the  testimony  of  other  experts 
to  this  same  fact  would  be  cumulative  and  inadmissible.  But 
the  new  evidence  is  not  cumulative  where  it  is  of  a  different 
kind  or  character  from  evidence  given  to  sustain  the  same 
point  on  the  prior  trial.1 


Fletcher  v.  People,  117  111.  184, 190,  discovered  evidence  of  general  good 

citing  Wharton  on  Crim.  PI.  &  Prac-  character  was  not  cumulative   when 

tice  870;  Long  v.  State,  54  Ga.  564,  the  accused  had  not  offered  any  proof 

and  see,  People  v.  Leighton,  1  N.  Y.  of  good  character  on  his  trial  though 

Crim.  Rep.  468.     In  People  v.  Lane,  his  character  for  veracity  had  been 

31   Hun  13,  it  was  held  that  newly-  impeached. 


CHAPTER  XXXV. 


EVIDENCE    IN    BASTARDY    PROCEEDINGS. 


§523.   Bastardy  proceedings— Wheth-      §530. 
er  criminal  or  civil  in  their 
character.  531. 

Degree  of  proof  required — Doc- 
trine of  reasonable  doubt  not        532. 
applicable. 

Evidence  for  the  jury  from  the 
inspection  of  the  child.  533. 

Presumption  of  legitimacy. 

Evidence    rebutting    the  pre- 
sumption of  legitimacy.  534. 

528.  The  relations  of  the  parties. 

529.  Competency  and  credibility  of        535. 

the  prosecutrix. 


524. 


525. 

526. 
527. 


Variance  in  proving  the  date 
of  the  conception. 

The  reputation  of  the  prose- 
cutrix. 

Sexual  intercourse  with  other 
men  during  the  period  of 
gestation. 

Admissibility  of  the  admis- 
sions and  declarations  of  the 
parties. 

Evidence  of  the  preliminary 
examination. 

Evidence  of  compromise  and 
settlement. 


§  523.  Bastardy  proceedings — Whether  criminal  or  civil  in 
their  character. — In  the  absence  of  statute  at  the  common  law 
no  responsibility  rested  upon  the  father  of  an  illegitimate  child 
to  provide  for  its  care,  education  or  maintenance,  or  for  the 
expenses  of  the  lying-in  or  nursing.1  But  at  the  present  time 
in  nearly  every  state  of  the  Union  statutes  exist  casting  this 
responsibility  upon  him,  and  providing  for  enforcing  the  same 
by  appropriate  legal  proceedings,  which  are  usually  com- 
menced at  the  instance  of  the  mother.2 


1Moncrief  v.  Ely,  19  Wend.  (N.Y.) 
405;  Birdsall  v.  Edgerton,  25  Wend. 
(N.  Y.)  619;  Vetten  v.  Wallace,  39  111. 
App.  390, 396 ;  Glenn  v.  State,  46  Ind. 
368,  376. 

2  State  v.  Mize,  117  N.  Car.  780,  781, 
23  S.  E.  Rep.  330,  Code  N.  Car.,  §  31. 
Some  statutes  provide  that  the  pro- 
ceeding may  be  initiated  by  a  superin- 


tendent or  overseer  of  the  poor  or 
other  similar  official.  Where  such  is 
the  case  the  mother  has  no  power  to 
prosecute  the  proceeding,  or  to  appeal 
from  any  order  which  is  made  therein. 
People  v.  Ogden,  8  App.  Div.  464,  40 
N.  Supp.  827;  People  v.  Shulman, 
8  App.  Div.  514,  40  N.  Y.  Supp.  779; 
construing  N.  Y.  Code  Cr.  Pro.,  §  840. 


(586) 


§  523 


KVIDKNCK     IN     BASTARDY    I'ltdCKKDIMJS. 


.-7 


A  statutory  mode  of  ascertaining  who  is  the  father  of  the 

child  and  of  compelling  the  father  to  assume  the  responsibility 
for  its  support,  is  a  bar  to  a  civil  suit  against  him  brought  by 
any  person  who  has  incurred  expense  in  caring  for  or  support- 
ing the  child .'  Whether  the  proceedings  given  by  the  statute  are 
civil  or  criminal  is  a  question  which  has  received  much  con- 
sideration in  the  cases.  In  some  states  the  begetting  of  a  bas- 
tard is  a  statutory  misdemeanor;2  and,  because  of  this  fact,  a 
discussion  of  the  rules  governing  the  procedure  and  the  pre- 
sentation of  evidence  in  bastardy  proceedings  will  not  be  out  of 
place  in  this  treatise.  The  current  of  the  authorities  favors  the 
view  that  the  proceedings  under  the  statute  by  virtue  of  which 
the  father  of  the  bastard  is  compelled  to  contribute  towards  its 
support  are  a  civil  action,3  though  not  in  the  sense  of  that  term 
as  it  is  used  in  a  statute  forbidding  arrest  in  a  civil  action.4 


Cf.  State  v.  Banker,  7  S.  Dak.  639, 
65  N.  W.  Rep.  33.  "They  (the  pro- 
ceedings) are  partly  for  the  benefit  of 
the  complainant,  and  may  be  insti- 
tuted in  her  name,  and  partly  for  the 
purpose  of  indemnifying  the  public, 
and  may  be  instituted  in  the  name  of 
the  people."  Sutfin  v.  People,  43 
Mich.  37,  4  N.  W.  Rep.  509. 

1  Nixon  v.  Perry,  77  Ga.  530. 

2  State  v.  Ostwalt,  118  N.  Car.  1208, 
1210;  Myers  v.  Stafford.  114  X.  Car. 
689,  690,  19  S.  E.  Rep.  764;  construing 
Code  X.  Car.,  § 35 ;  State  v.  Cagle,  1 14 
N.Car.  835,  19  S.  E.  Rep.  766;  State 
v.  Branson,  38  S.  Car.  263,  268,  16 
S.  E.  Rep.  1001;  General  Statutes, 
S.  Car..  §  L582;  Georgia  Code,  §4564, 
as  amended  by  Act  of  March  20,  1866. 

3  Smith  v.  Lint,  37  Maine  546,  547; 
State  v.  Blackburn,  61  Ark.  407;  Peo- 
ple o.  Harty,  49  Mich.  490,  492,  13  X. 
W.  Rep.  829;  People  v.  Cole  (Mich., 
1897),  71  X.  W.  Rep.  455;  Glenn  r. 
State,  46  Ind.  368,  376;  State  v.  Shoe- 
maker, 62  Iowa  343;  Lewis  v.  People, 
82  111.  104;  State  r.  Mcintosh.  64  N. 
Car.  607;  Millett  v.  Baker,  42  Barb. 
(N.   Y.)    215;    People    v.    Phalen,    40 


Mich.  492,  4D4.  But  compare  State  v. 
Rogers,  119  X.  Car.  793,  26  S.  E.  Kep. 
142,  143;  Baker  v.  State,  56  Wis.  568; 
Jackson  v.  State,  29  Ark.  62;  Semon  v. 
People,  42  Mich.  141 ;  Oldham  v.  State, 
5  Gill  (Md.)  90;  Bake  v.  State,  2] 
Md.  422;  Dorgan  v.  State,  72  Ala.  173; 
In  re  Lee,  41  Kan.  318;  Paulkr.  State, 
52  Ala.  427,  holding  that  this  proceed- 
ing is  criminal  or  guasi-criminal  in 
its  character.  Where  the  statute  in 
terms  provides  that  the  issue  of  pater- 
nity shall  be  tried  in  a  court  which 
lias  an  exclusive  criminal  jurisdiction, 
provides  also  that  the  proceedings 
shall  be  commenced  by  a  warrant,  as 
is  the  case  in  other  criminal  actions, 
uses  the  words  "accused,"  "acquit- 
ted," and  "  convicted,"  and  farther- 
more  provides  that  the  defendant 
shall  be  liable  to  an  execution  to  the 
same  extent  as  are  those  convicted  of 
misdemeanors,  the  conviction  is  irre- 
sistible that  the  legislature  intended 
to  make  it  a  criminal  offense.  State 
v.  Brewer,  38  8.  Car.  263,  268,  his.  K. 
Rep.  1001,  1004. 

•Hodgson  d.  Nickel], 69  Wis. 308,  34 
N.  W.  Kep.  118;    State    o.   Brewer,  38 


588 


CRIMINAL    EVIDENCE. 


§  524 


And  the  amount  charged  against  the  father  of  the  bastard  as 
the  result  of  the  statutory  proceeding  is  not  a  debt  within  the 
meaning  of  a  statutory  or  constitutional  provision  prohibiting 
imprisonment  for  debt.1 

§524.  Degree  of  proof  required — Doctrine  of  reasonable 
doubt  not  applicable. — The  rules  and  principles  of  the  law  of 
evidence  which  are  applicable  to  civil  proceedings  are  also 
applicable  to  bastardy  proceedings.  The  defendant  may  be 
compelled  to  testify  as  a  witness  for  the  mother  of  the  child,2 
and,  in  case  of  the  absence  of  any  material  witnesses,  their 
depositions  may  be  available  as  evidence.3 

The  burden  of  proof  to  show  the  paternity  of  the  child  is 
upon  its  mother,  but  this  fact  need  never  be  proved  by  her 
beyond  a  reasonable  doubt,4  nor  to  the  reasonable  and  conclu- 
sive satisfaction  of  the  jury.5 

tnting  the  proceeding,  as  is  the  rule 
in  criminal  proceedings.  But  the  rule 
may  be  otherwise  in  the  case  of  ex- 
press statutory  provisions.  State  v. 
Blackburn,  61  Ark.  407,  33  S.  W.  Rep. 
529. 

2  Booth  v.  Hart,  43  Conn.  480. 

3  State  v.  Hickerson,  72  N.  Car.  421, 
422 ;  Richardson  v.  People,  31  111.  170. 

4  Dibble  v.  State,  48  Ind.  470,471; 
Askren  v.  State,  51  Ind.  592,  593 ;  De 
Priest  v.  State,  68  Ind.  569;  Reynolds 
v.  State,  115  Ind.  421,  422;  Dukehart 
v.  Coughman,  36  Neb.  412,  414;  54  N. 
W.  Rep.  680;  State  v.Nichols,  29 Minn. 
357;  State  v.  Black,  89  Iowa  737,  738, 
55  N.  W.  Rep.  105;  Satterwhite  v. 
State,  28  Ala.  65 ;  Knowles  v.  Scribner, 
57  Me.  495;  People  v.  Phalen,  49 
Mich.  492,  494;  Semon  v.  People,  42 
Mich.  141,  149;  Stovall  v.  State,  9 
Jere.  Baxter  (Tenn.)  597,  598;  Lewis 
v.  People,  82  111.  104;  State  v.  Rogers, 
79  N.  Car.  609,  610.  But  see  contra, 
Van  Tassell  v.  State,  59  Wis.  351,  352, 
18  N.  W.  Rep.  328. 

5  Miller  v.  State,  110  Ala.  69,  20  So. 
Rep.  392. 


S.  Car.  263,  268.  Where  a  statute,  as 
Acts  1879,  chapter  92,  §2,  provides 
that  the  accused,  if  he  is  found  to  be 
the  father  of  the  child,  may  be  fined 
a  certain  sum  for  the  benefit  of  the 
school  fund,  the  proceedings  may  be 
regarded  as  criminal.  Hence  a  stat- 
ute limiting  the  right  of  appeal  on  the 
part  of  the  state  in  criminal  actions  is 
applicable  in  such  case.  State  v.  Ost- 
walt,  118  N.  Car.  1208,  1216,  24  S.  E. 
Rep.  660,  construing  S.  Car.  Code, 
§  1237.  In  State  v.  Allrick,  63  Minn. 
328,  65  N.  W.  Rep.  639,  it  was  held 
that  a  statutory  provision  relating  to 
appeals  in  civil  actions  had  no  appli- 
cation whatever  to  a  bastardy  pro- 
ceeding. 

1  State  v.  Brewer,  38  S.  Car.  263,  268, 
16S.E.  Rep.  1001, 1003 ;  In  re  Wheeler, 
34  Kan.  96,  8  Pac.  Rep.  276;  Musser 
v.  Stewart,  21  Ohio  St.  353 ;  Ex  parte 
Cottrell,13Neb.  193,13  N.W. Rep.  174; 
State  v.  Musheid,  12  Wis.  561 ;  State  v. 
Jager,  19  Wis.  235 ;  Bookhout  v.  State, 
66  Wis.  415,  28  N.  W.  Rep.  179.  Where 
the  defendant  is  acquitted  the  costs 
can  not  be  taxed  against  the  county  or 
other  governmental  subdivision  insti- 


§  525 


EVIDKNCK    IX     DASTAKDY     I'KOCKKDINGS. 


589 


A  verdict  casting  the  paternity  of  the  child  on  the  accused 
ought  to  be  sustained  though  it  is  supported  by  a  preponder- 
ance of  the  evidence  only.1 

§  525.  Evidence  for  the  jury  from  the  inspection  of  the  child. 
— An  irreconcilable  diversity  of  opinion  exists  upon  the  pro- 
priety of  permitting  the  child,  whose  paternity  is  in  issue,  to 
be  inspected  by  the  jury.  No  principle  of  law  ought  to  be 
permitted  to  operate  to  prevent  the  mother  from  having  her 
infant  child  with  her  in  the  court-room  during  the  trial.2  The 
maternal  instinct,  and,  perhaps,  necessity  both  may  prompt 
her  to  have  the  child  with  her;  and,  if  such  is  the  case,  it  may 
be  very  difficult  to  prevent  the  members  of  the  jury  from 
making  an  inspection  of  the  child,  and  a  comparison  of  its 
features  with  those  of  the  accused,  though  their  attention  is 
not  expressly  called  to  the  matter.  The  question  is  has  the 
court  a  right  to  instruct  the  jury  in  express  terms  that  they 
may,  from  a  personal  examination  of  the  child,  and  from  a 
comparison  of  its  appearance,  features  and  complexion  with 
similar  characteristics  of  the  accused,  draw  the  inference  that 
he  is  the  father  of  the  child?  The  right  of  the  court  to  give 
such  an  instruction  is  supported  by  very  many  of  the  authori- 
ties.3 But  the  evidence  thus  procured  by  visual  inspection  has 
often   been   excluded,   particularly  when  the  child   was  very 


1  State  v.   Romaine,  58  Iowa  46,  49, 

11  N.  W.  Rep.  721;  Altschuler  o. 
Algaza,  16  Neb.  631 ;  Olson  v.  Peter- 
son, 33  Neb.  358,  50  N.  W.  Rep.  155; 
Davison  v.  Cruse,  47  Neb.  829,  66  N. 
W.  Rep.  823;  State  v.  Bunker,  7  S. 
Dak.  639,  65  X.  V\\  Rep.  33;  People  o. 
Tripicersky,  38  N.  Y.  Supp.  696,  4 
App.  Div.  613.  So,  too,  counsel  repre- 
senting the  prosecutrix  may,  in  sum- 
ming up  comment  upon  the  failure  of 
the  defendant  to  testify  in  his  own 
behalf  in  denial  of  the  charge  against 
him.     State  v.  Snure,  29  Minn.  132, 

12  N.  W.  Rep.  347;  Ingram  v.  State, 


24  Neb.  33,  37  N.  W.  Rep.  943;  Miller 
v.  State,  110  Ala.  69,  20  So.  Rep.  392. 

2  Hutchinson  v.  State,  19  Neb.  263, 
266. 

3  State  v.  Britt,  78  N.  Car.  439,  4  12; 
State  v.  Woodruff,  67  X.  Car.  89,  91,  92  ; 
State  r.  Borton,  100  N.  Car.  443,  448; 
State  v.  Arnold,  13  Ired.  Law  (35  X. 
Car.)  184  ;  Hutchinson  r.  State.  19  Neb. 
263,  266,  27  X.  W.  Rep.  113;  Scott  >•. 
Donovan,  153  Mass.  378,  379;  Finne- 
gan  v.  Dugan,  14  Allen  197;  Risk  p. 
state.  1!'  Iml.  L52,  153;  State  v.  Smith, 
54  Iowa  104,  106;  Crow  o.  Jordon, 
49  Ohio  St.  655,  656;  Gilmanton  r. 
Ham,  38  X.  H.  108,  115. 


590 


CRIMINAL    EVIDENCE. 


§525 


young.  If  the  infant  is  so  young  and  so  immature  and  unde- 
veloped that  its  features  have  not  assumed  a  permanent  char- 
acter, any  resemblance,  fancied  or  real,  would  doubtless  be 
misleading.1 

Whether  an  inspection  by  the  jury  in  court  be  permitted  or 
not,  it  is  very  well  settled  that  an  inspection  by  the  jury,  out 
of  court,  during  an  adjournment,  is  erroneous.  But  perhaps 
such  an  error  might  be  cured  by  the  judicial  instruction  that 
the  jury  must  not  consider  the  appearance  of  the  child  in 
determining  its  paternity.2 


1  Risk  v.  State,  19Ind.  152, 153;  Over- 
lock  v.  Hall,  81  Maine  348,  351;  State 
v.  Danforth,  48  Iowa  43,  47;  Hana- 
walt  v.  State,  64,  Wis.  84,  85-89,  24  N. 
W.  Rep.  489;  Gaunt  v.  State,  21 
Vroom  (50  N.  J.  L.)  490,  493;  Reitz 
v.  State,  33  Ind.  187 ;  Copeland  v. 
State  (Tex.,  1897),  40  S.  W.  Rep.  589. 
In  those  states  where  the  proceeding 
is  not  regarded  as  criminal  in  its 
character,  the  accused  will  not  be 
allowed  to  prove  his  good  character, 
nor  can  the  prosecutrix  attack  it. 
Houser  v.  State,  93  Ind.  228;  Side- 
linger  v.  Bucklin,  64  Maine  371 ;  Low 
v.  Mitchell,  18  Maine,  372.  "The  re- 
semblance of  the  child  to  the  accused 
alone,  however  striking  it  may  be,  is 
insufficient  evidence  to  go  to  the  jury- 
as  sole  proof  of  paternity.  It,  is 
merely  one  circumstance  to  be  con- 
sidered in  connection  with  other 
relevant  evidence.  The  child  is  re- 
garded as  an  exhibit  from  which  the 
jury  alone  are  to  draw  inferences 
without  any  oral  comments  or  accom- 
panying explanations  by  witnesses 
in  the  same  manner  applicable  to  any 
relevant  evidence.  The  personal  ap- 
pearance of  the  infant,  his  form,  feat- 
ures and  complexion,  as  they  appear 
to  the  eyes  of  the  jury,  being  evidence 
of  facts  within  the  common  knowledge 
of  most  men,  it  is  an  invasion  of  their 
province  and  a  usurpation  of  their 


powers  to  admit  the  opinions  of  ex- 
pert or  other  witnesses  upon  such 
points  in  connection  with  the  inspec- 
tion itself."  Jones  v.  Jones,  45  Md. 
144, 148;  Warlick  v.  White,  76  N.  Car. 
175,  179.  In  Clark  v.  Bradstreet,  80 
Me.  454  on  p.  456,  15  Atl.  Rep.  56, 
where  it  was  sought  to  have  an  in- 
spection of  a  six  weeks  old  child,  the 
court  said:  "  Where  the  child  was  a 
mere  infant,  such  evidence  is  too 
vague,  uncertain  and  fanciful,  and  if 
allowed,  would  establish,  not  only  an 
unwise,  but  a  dangerous  and  uncer- 
tain rule  of  evidence."  In  the  case 
of  People  e.  Carney,  29  Hun  (N.  Y.) 
47,  wbere  a  young  child  was  exhibited 
to  the  jury,  the  court  said :  .  "This 
evidence  enabled  the  court  to  com- 
pare the  color  of  the  child's  eyes  with 
those  of  the  defendant  who  was  pres- 
ent in  court.  We  do  not  regard  this 
kind  of  evidence  as  safe  or  proper. 
*  *  *  Common  observation  re- 
minds us  that  in  families  of  children 
different  colors  of  hair  and  eyes  are 
common  and  that  it  would  be  danger- 
ous to  permit  a  child's  paternity  to 
be  questioned  or  proved  by  compari- 
son of  the  color  of  its  hair  and  eyes 
with  that  of  the  alleged  parent." 

2  La  Matt  v.  State,  128  Ind.  123, 124. 
It  seems  that  an  infant  may  be  ex- 
hibited to  the  jurors  to  enable  them 
to  determine  the  question  whether  a 


§  526       EVIDENCE  IN  BASTARD'S  PROCEEDINGS.         591 

Resemblance  of  features  is  largely  a  matter  of  opinion,  and 
on  this  point  the  jurors  are  as  competent  to  judge  as  any  wit- 
nesses. Hence,  a  witness  can  not  testify  that  the  child  which  is 
in  court,  and  which  the  jurors  can  see,  resembles  the  defendant, 
though,  on  the  other  hand,  a  witness  may  testify  for  the  de- 
fendant that  the  child  resembles  some  other  man,  who,  it  is 
alleged,  has  had  sexual  intercourse  with  the  mother.1 

§  526.  Presumption  of  legitimacy. — It  was  the  rule  at  the 
common  law  that  if  the  husband  was  within  the  four  seas,  i.  e., 
if  he  was  resident  either  in  Great  Britain  or  Ireland,  the  issue 
of  the  wife  born  during  coverture  was  conclusively  presumed 
to  be  legitimate.  The  only  exception  to  this  rule  was  where 
the  husband  was  shown  to  be  actually  impotent.2 

But  in  the  early  days  of  the  present  century  this  rule  re- 
ceived some  very  substantial  modifications,3  and  it  is  now  the 
law  that  the  presumption  of  legitimacy  may  be  rebutted  though 
it  is  not  shown  that  the  husband  is  out  of  England.4  If  ac- 
cess be  shown,  meaning  by  that  word  the  opportunity  for  sex- 
ual intercourse  between  the  parties  to  a  marriage,  the  pre- 
sumption of  legitimacy  is  and  always  has  been  very  strong.5 
But  where  non-access  at  the  date  of  the  conception  is  proved  to 
the  satisfaction  of  the  court,  the  presumption  is  readily  rebut- 
table, even  when  the  parties  to  the  marriage  cohabit  after  the 
conception  of  the  child.6     So,  in   a  bastardy  proceeding   the 

mulatto  child  can  possibly  be  born  of  issue  of  a  marriage,  which  was  con- 
parents  both  of  whom  are  white.  Wat-  ceived  while  the  parties  thereto  were 
kins  v.  Carlton,  10  Leigh  (Va.)  560.  living  together,  would  be  conclusively 
See  remarks  of  court  on  page  576.  presumed  to  be  legitimate,  though  it 

1  State  v.  Britt,  78  N.  Car.  439 ;  Paulk  was  affirmatively  proved  that  the  wife 

v.  State,  52  Ala.  427.  had  been  guilty  of  adultery.  Banbury 

2 1  Black  Comm.  457  ;  Coke  Litt.  244.  Peerage  Case,  1  Sim.  &  Stu.  153. 

•Foxcroft's  Case,  1  Rolle  Abr.  359.  6  Bullock   >•.  Knox,  96  Ala.  195,   11 

4  Reg.  v.  Murrey,  1  Salk.  122;  Pen-  So.  Rep.  339;   State  r.  Wbrthingham, 

drellu.  Pendrell,  2  Stra.  925;   Wright  23  Minn.  528,534;   Wright  r.  Hicks, 

v.  Hicks,  12  Ga.  155;  Morris  v.  Davies,  12  Ga.  155;   Herring  v.  Goodson,  43 

5  C.  &  F.  163.  Miss.  392,  396 ;  Cross  v.  Cross,  3  Paige 

5Plowesw.  Bossey,  31  L.  J.Ch.681;  (N.  Y.)  139;  Vetten  v.  Wallace,   39 

Vernon  v.  Vernon,   6  La.   An.   242;  111.  A  pp.  390,  397;   Dean  r.  State,  29 

Woodward  v.  Blue,  107  N.  Car.  407.  Ind.  483,  485;   State  v.  Pettaway,  3 

Thus  in  one  case  it  was  held  that  the  Hawks  (N.  Car.)  623. 


592  CRIMINAL    EVIDENCE.  §  527 

presumption  of  legitimacy  which  attaches  to  the  child  of  a 
married  woman  may  be  rebutted  by  proving  the  non-access  of 
the  husband  or  by  showing  his  actual  impotency.1 

A  man  who,  knowing  a  woman  is  pregnant,  marries  her 
during  her  pregnancy,  is  conclusively  presumed  to  be  the 
father  of  the  unborn  child.  The  putative  father  of  a  bastard 
is  not  responsible  for  its  support  or  maintenance,  under  such 
circumstances,  where  another  man  has  thus  agreed  to  stand  in 
loco  parentis  to  the  unborn  child,2  even  though  the  child  is 
born  so  soon  after  the  date  of  the  marriage  that  its  conception 
must  have  necessarily  preceded  it.3  But  it  will  not  be  pre- 
sumed that  a  man  who  marries  the  mother  of  a  bastard  which 
was  born  before  the  marriage  is  its  father.4 

§  527.   Evidence  rebutting  the  presumption  of  legitimacy. — 

Neither  husband  nor  wife  can  testify  to  the  fact  of  non-access 
during  coverture  to  rebut  the  presumption  of  legitimacy  in  an 
action  brought  by  a  married  woman  against  one  whom  she 
claims  is  the  father  of  her  bastard  child.5     The  rule  is  strin- 

1  State  v.  McDowell,  101  N.  Car.  734,  623 ;  Rex  v.  Sourton,  5  Ad.  &  E.  180; 
735,  7  S.  E.  Rep.  785;  State  v.  Lavin,  Vetten  v.  Wallace,  39  111.  App.  390, 
80  Iowa  555,  562;  State  v.  Britt,  78  397.  The  fact  that  the  other  parent 
N.  Car.  439.  See,  also,  cases  cited  in  is  dead  does  not  alter  this  rule.  1 
last  note.  Taylor  Evidence  837,  838.   The  recent 

2  Miller  v.  Anderson,  43  Ohio  St.  statutory  regulations  removing  com- 
473,  476,  477,  3  N.  E.  Rep.  605;  State  mon  law  disqualifications  do  not  re- 
v.  Shoemaker,  62  Iowa  343,  344,  17  move  them  unless  it  is  expressly  so 
N.  W.  Rep.  589;  State  v.  Romaine,  58  stated.  Tioga  County  v.  South  Creek 
Iowa  46,  48 ;  Rhyne  v.  Hoffman,  6  Township,  75  Pa.  St.  433.  The  fact  that 
Jones  Eq.  (N.  Car.)  335;  State  v.  the  mother  of  the  child  was  a  single 
Herman,  13  Ired.  (N.  Car.)  502.  woman  will  be  held  to  be  sufficiently 

3  Page  v.  Dennison,  29  Pa.  St.  420,  proved  by  her  uncontradicted  testi- 
5  Amer.  Law  Reg.  O.  S.  469.  mony  to   the  effect  that  she  was  en- 

4  McDonald's  Appeal,  30  W.  N.  gaged  to  marry  the  defendant  and 
Cases  166.  that  she  is   unmarried    at  the    time 

5Easley  v.  Com.  (Pa.,  1887),  11  Atl.  of  trial.     La  Plant  v.  People,  60  111. 

Rep.  220 ;  Mink  v.  State,  60  Wis.  583,  App.  340.    The  fact  that  the  brother 

585,  19  N.  W.  Rep.  445;  Cope  v.  Cope,  of  the  accused  without  his  knowledge 

1  M.  &  R.  269;  Com.  v.  Shepherd,  6  attempted  to  compromise  the  matter 

Binney  (Pa.)   283,285;   Chamberlain  with  the  mother  is  no  evidence  of  his 

v.  People,  23  N.  Y.  85,  88;  States,  guilt.   People  v.  Hawks  (Mich.,  1897), 

Pettaway,  3  Hawks  Law  (10  N.  Car.)  65  N.  W.  Rep.  100. 


§  527 


EVIDENCE    IN    BASTARDY    PROCEEDINGS. 


593 


gent  and  excludes  all  evidence,  director  collateral,  from  which 
the  fact  of  non-access  might  be  inferred.1 

The  fact  of  non-access  may  be  established  by  other  evidence. 
It  may  be  proved  that  the  husband  was  absent  from  the  wife 
at  the  date  when  the  child  was  conceived.  If  it  appears  ; 
the  husband  and  the  wife  were  not  living  together  at  the  time 
of  the  alleged  conception,  and  could  not  have  had  sexual  in- 
tercourse at  that  date,  the  presumption  of  legitimacy  is  over- 
come. So  where  it  appears  from  the  evidence  that  the  hus- 
band has  been  absent  from  the  country  for  a  period  which  is 
longer  than  the  period  of  gestation  of  the  child,  as  when  the 
parties  had  separated  years  before  and  had  since  resided  in 
cities  which  are  widely  separated,  the  fact  of  non-access  maybe 
regarded  as  conclusively  established.2 


1  Questions  such  as  "Who  was  with 
you  on  a  certain  date?"  or  "Where 
was  your  husband  on  that  date?" 
are  objectionable  as  tending  to  prove 
non-access  indirectly.  "The  pre- 
sumption of  law  is  in  such  a  case  that 
the  husband  had  access  to  the  wife, 
and  this  presumption  must  be  over- 
come by  the  clearest  evidence  that  it 
was  impossible  for  him  by  reason  of 
impotency  or  imbecility,  or  entire 
absence  from  the  place  where  the  wife 
was  during  such  time,  to  have  access 
to  the  wife,  or  to  be  the  father  of  the 
child.  Testimony  of  the  wife  even 
tending  to  show  such  fact,  or  of  any 
fact  from  which  such  non-access  could 
be  inferred,  or  of  any  collateral  fact 
connected  with  the  main  fact,  is  to  be 
most  scrupulously  kept  out  of  the 
case ;  and  such  non-access  and  illegiti- 
macy must  clearly  be  proven  by  other 
testimony."  Mink  v.  State,  60  Wis. 
583,  on  page  585. 

2  Rex  v.  Luffe,  8  East  193 ;  State  v. 
Lavin,  80  Iowa  555,  562,  citing  cases 
fully ;  Haworth  v.  Gill,  30  Ohio  St. 
627,  628;  Com.  v.  Shepherd,  fi  Binney 
(Pa.)   283,   280;   Watts  v.  Owens,  62 

38— Cr.  Ev. 


Wis.  512;  Chamberlain  v.  People,  23 
N.  Y.  85;  Herring  v.  Goodson,  43 
Miss.  392,  396;  Dean  v.  State,  29  Ind. 
483,  485;  Boykin  v.  Boykin,  70  N.  Car. 
262,  264;  Pittsford  v.  Chittendon.  58 
Vt.  49;  Cross  v.  Cross,  3  Paige  (N.  Y.) 
139;  Rex  v.  Maidstone,  12  East  r>:>0. 
In  a  bastardy  case  if  the  husband  had 
access  his  impotence  must  be  clearly 
proved.  Com.  v.  Shepherd,  6  Binney 
(Pa.)  283,  286;  Com.  v.  Wentz,  1  Ash- 
mead  (Pa.)  269,  270.  "Non-access  can 
not  be  proved  either  by  the  husband 
or  the  wife,  whether  the  action  be 
civil  or  criminal  or  whether  the  pro- 
ceeding is  one  of  settlement  or  bas- 
tardy or  to  recover  property  as  heir  at 
law."  By  the  court  in  Dennison  r. 
Page,  29  Pa.  St.  420;  Rex  r.  Book,  1 
Wils.  340;  Egbert  v.  Greenwalt,  44 
Mich.  245;  Corson  v.  Corson,  44  N.  H. 
587.  "That  issue  born  in  wedlock, 
though  begotten  before,  is  presump- 
tively legitimate  is  an  axiom  of  law  so 
well  established  that  to  cite  author- 
ities in  support  of  it  would  be  a  mere 
waste  of  time.  So  the  rule  that  the 
parents  will  not  be  permitted  to  prove 
non-access  for  the  purpose  of  bastard- 


594 


CRIMINAL    EVIDENCE. 


§528 


§  528.  The  relations  of  the  parties. — Evidence  of  all  facts 
which  tend  to  prove  the  intimate  relations  which  existed  be- 
tween the  accused  and  the  prosecutrix,  including  an  engage- 
ment and  mutual  promise  to  marry,1  is  relevant.2  Thus,  acts 
of  sexual  intercourse,  other  than  the  one  alleged  to  have  re- 
sulted in  pregnancy,3  and  opportunity  for  the  intercourse  prior 
to  the  conception,4  are  always  relevant. 

Advances  and  attempts  by  the  accused  to  have  sexual  inter- 
course with  prosecutrix  at  other  times,  though  not  successful, 
are  always  relevant  to  show  the  desire  for  such  intercourse.5 

A  letter  proved  or  admitted  to  have  been  written  by  the  de- 


izing  such  issue  is  just  as  well  settled. 
Many  reasons  have  been  given  for 
this  rule.  Prominent  among  them  is 
the  idea  that  the  admission  of  such 
testimony  would  be  unseemly  and 
scandalous,  and  this  not  so  much  so 
from  the  fact  that  it  reveals  immoral 
conduct  upon  the  part  of  the  parents, 
as  because  of  the  effect  it  may  have 
upon  the  child  who  is  in  no  fault,  but 
who  must  nevertheless  be  the  sufferer 
thereby.  That  the  parents  should  be 
permitted  to  bastardize  the  child  is  a 
proposition  which  shocks  our  sense  of 
right  and  decency  and  hence  the  rule 
of  law  which  forbids  it."  By  the 
court  in  Tioga  County  v.  South  Creek 
Township,  75  Pa.  St.  433,  436. 

JGemmill  v.  State  (Ind.,  1896),  43 
N.  E.  Rep.  909. 

2Strickler  v.  Grass,  32  Neb.  811,814. 

8  Ramey  v.  State,  127  Ind.  243,  244 ; 
26  N.  E.  Rep.  818 ;  Gemmill  v.  State 
(Ind.,  1896),  43  N.  E.  Rep.  909;  State 
v.  Smith,  47  Minn.  475,  476;  Harty  v. 
Malloy,  67  Conn.  339,  35  Atl.  Rep. 
259;  People  v.  Schilling  (Mich.,  1896), 
68  N.  W.  Rep.  233. 

4  Goodwine  v.  State,  5  Ind.  App.63, 
68,  31  N.  E.  Rep.  554 ;  Harty  v.  Mal- 
loy, 67  Conn.  339,  35  Atl.  Rep.  259; 


Thayer  v.  Davis,  38  Vt.  163;  Francis 
v.  Rosa,  151  Mass.  532,  24  N.  E.  Rep. 
1024;  Benton  v.  Starr,  58  Conn.  285. 
"The  previous  familiarity  or  intimacy 
existing  between  the  parties  was  a 
circumstance  bearing  on  the  proba- 
bility of  the  alleged  sexual  intercourse 
which  is  the  subject  of  the  prosecution. 
It  tended  to  illustrate  the  relation  of 
the  parties  to  each  other  at  the  time 
when,  as  it  is  claimed  by  the  prosecu- 
trix, the  child  to  which  she  gave  birth 
was  begotten,  and  this  relation  has 
always  been  regarded  as  proper  evi- 
dence as  well  for  one  party  as  for  an- 
other." Thayer  v.  Davis,  38  Vt.  163, 
on  page  165.  Evidence  that  both  be- 
fore and  after  the  date  of  the  concep- 
tion of  the  child  the  complaining  wit- 
ness was  accustomed  to  sleep  with  a 
man  who  could  have  easily  been  the 
father  of  the  child,  has  been  received 
to  impeach  her  credibility.  State  v. 
Read,  45  Iowa  469. 

5  Baker  v.  State,  69  Wis.  32,  38,  33 
N.  W.  Rep.  52;  Walker  v.  State,  92 
Ind.  474.  The  accused  may  be  com- 
pelled on  cross-examination  to  answer 
such  questions  relating  to  other  acts 
of  intercourse.  State  v.  Klitzke,  46 
Minn.  343,  345. 


§  529 


EVIDENCE  IN  BASTARDY  PROCEEDINGS. 


595 


Cendant  to  the  prosecutrix,  containing  expressions  showing  the 

intimacy  and  affection  between  them,  is  admissible.1 

It  lias  been  held  that  the  accused  can  not  be  permitted  to 
prove  that  the  mother  had  attempted  to  procure  an  abortion,2 
though,  on  the  other  hand,  she  may  show  that  he  had  advised 
her  to  procure  an  abortion,3  and  had  offered  her  medicine  for 
that  purpose,4  as  tending  to  prove  the  intimate  relations  exist- 
ing between  them.5 

§  529.    Competency    and   credibility    of    prosecutrix. — The 

mother  is  a  competent,6  and  perhaps  an  indispensable,  wit- 
ness.7 Her  evidence  is  in  law  no  less  credible  than  that  of  the 
accused,8  the  credibility  and  weight  of  the  evidence  of  both 
being  for  the  jury.  But  they  may  consider  the  pecuniary  in- 
terest of  the  accused  in  denying  the  paternity  of  the  child  as 
likely  to  affect  his  credibility.9  In  the  absence  of  any  statute 
requiring  the  testimony  of  the  prosecutrix  to  be  corrobo- 
rated, the  jury  may  find  that  the  accused  is  the  father  of  the 


1  Williams  v.  State  (Ala.,  1897),  21 
So.  Rep.  463,  464;  Walker  v.  State,  92 
Ind.  474;  Sullivan  v.  Hurley,  147 
Mass.  387,  18  N.  E.  Rep.  3;  La  Matt  v. 
State,  128  Ind.  123 ;  Beers  v.  Jackman, 
103  Mass.  192.  "In  proof  of  unlaw- 
ful sexual  intercourse  the  adulterous 
disposition  of  the  parties  at  the  time 
may  be  shown.  To  this  end,  evidence 
of  the  antecedent  and  the  subsequent 
conduct  and  declarations  of  the  par- 
ties, if  it  has  a  tendency  to  prove  the 
fact,  is  admissible.  It  is  a  matter  of 
common  observation  that  a  criminal 
intimacy  is  usually  of  gradual  devel- 
opment, and,  when  established,  is 
likely  to  continue  between  the  par- 
ties. The  act  itself  is  the  strongest 
evidence  of  the  existence  of  the  dispo- 
sition, and  it  has  been  recently  held 
that  for  the  purpose  of  proving  it,  an 
act  of  adultery  at  another  time  may 
oe  shown.  *  *  *  It  has  long  been 
held  that  prior  acts  of  familiarity  were 
admissible  to  render  it  not  improba- 


ble that  the  act  might  have  occurred." 
By  the  court  in  Beers  v.  Jackman,  103 
Mass.  192,  p.  194. 

2  Sweet  v.  Sherman,  21  Vt.  23,  29. 

3  Miller  v.  State,  110  Ala.  69,  20  So. 
Rep.  392. 

4  Mcllvain  v.  State,  80  Ind.  69,  72; 
Nicholson  v.  State,  72  Ala.  176. 

5  A  rumor  which  was  prevalent  in 
the  neighborhood  that  the  prosecutrix 
had  been  improperly  intimate  with 
the  accused  is  not  admissible  to  prove 
the  paternity  of  the  child.  Saint  r. 
State,  68  Ind. 128, 130. 

6  Bowers  v.  Wood,  143  Mass.  182, 
184. 

7  Reg.  v.  Armitage,  27  L.  T.  41,  L.  R. 
7  Q.  B.  773. 

8  State  v.  Ginger,  80  Iowa  ."74  ;  Rob- 
erts r.  State,  84  Wis.  361,  363,  54  N. 
W.  Rep.  5S0;  Altschulcr  -:.  Algaza.  16 
Neb.  631. 

9  McClellan  v.  State,  66  Wis.  335, 
337,  28  N.  W.  Rep.  347. 


596  CRIMINAL  EVIDENCE.  §  530 

child  upon  the  testimony  of  the  mother  alone,  provided  they 
shall  believe  it  is  credible.1 

§530.    Variance  in  proving  the  date   of  the  conception. — 

The  precise  date  of  the  conception  is  not  material  except  so 
far  as  a  failure  to  prove  it  precisely  on  the  part  of  the  mother 
may  invalidate  the  credibility  and  effect  of  her  evidence.2 
But  the  act  of  intercourse  must  be  shown  to  have  occurred  on 
such  a  date  as  will  satisfy  the  jury  that  the  infant,  whose 
paternity  is  in  question,  was  the  result  of  it. 

§  531.  The  reputation  of  the  prosecutrix. — The  general  rule 
is  that  the  reputation  of  the  prosecutrix  is  irrelevant.3  The 
responsibility  of  the  accused  for  the  support  of  the  bastard 
depends  upon  its  paternity,  not  upon  the  good  or  bad  reputa- 
tion of  the  mother.  Hence,  the  court  should  not  permit  ques- 
tions to  be  put  to  her  tending  to  prove  her  immoral  actions 
with  other  men,  merely  for  the  sake  of  impeaching  her,  by 
showing  her  evil  reputation.  Under  some  circumstances, 
however,  her  adultery  with  other  men   may  become  relevant.4 

§  532.  Sexual  intercourse  with  other  men  during  the  period 
of  gestation. — The  prosecutrix  may  be  questioned  as  to  acts  of 
sexual  intercourse  with  other  men  when  the  sole  object  of  the 
questions  is  to  ascertain  the  paternity  of  the  child.  Any  ques- 
tion put  to  her  for  this  purpose  involving  her  immorality  with 

1  Olson  v.  Peterson,  33  Neb.  358;  woman  who  appears  in  court  to  affili- 
State  v.  McGlothlen,  56  Iowa  544,  545 ;  ate  her  bastard  child  is  pretty  effect- 
Miller  v.  State,  110  Ala.  69,  20  So.  Rep.  ually  impeached  without  further 
392.  proof  on  the  subject ;  but  that  has  no 

2  Francis  v.  Rosa,  151  Mass.  532 ;  direct  bearing  upon  the  question  to 
Ross  v.  People,  34  111.  App.  21 ;  Hoi-  be  tried — whether  the  accused  is  the 
comb  v.  People,  79  111.  409;  Hamilton  father  of  such  child.  Of  course,  he 
v.  People,  46  Mich.  186.  may  show  what  her  reputation  is  for 

8Sidelinger  v.   Bucklin,   64  Maine  truth  and  veracity,  and  may  thus  at- 

371 ;   Davison  v.   Cruse,  47  Neb.  829,  tack  the  credibility  of  her  testimony, 

66  N.W.  Rep.  823 ;  Swisher  v.  Malone,  but  that  is  as  far  as  he  can  go  in  ques- 

31  W.  Va.  442.  tions  of  reputation."     By  the  court  in 

4  "The  character  for  chastity  of  a  Bookhout  v.  State,  66  Wis.  415. 


§  532 


EVIDKNTK     IN     V.A  ST  A  K  I)  Y     l'K<  H'KKDI  N<  iS. 


597 


other  men  must  relate  to  actions  coming  within  a  period  dur- 
ing which  the  child  mighl  Wave  been  conceived.1 

The  questions  must  indicate  explicitly  the  time  and  place  of 
the  sexual  intercourse  and  the  name  of  the  person  with  whom 
it  is  alleged  that  it  was  indulged  in.2 

If  the  woman  denies  the  sexual  intercourse,  it  may  be  proved 
by  the  testimony  of  a  man  who  can  testify  that  she  has  had 
intercourse  with  him.3  And  on  the  other  hand  it  is  relevant 
to  prove  that,  prior  to  the  date  of  the  conception,  the  mother 
had  received  no   attention   from  any  man  except  the  accused.4 

The  length  of  the  period  over  which  the  inquiry  into  the 
illicit  relations  of  the  prosecutrix  with  other  men  may  extend 
is  not  definitely  fixed  by  the  cases.  A  great  deal  depends  on 
the  circumstances  of  each  case,  and  particularly  on  the  ob- 
stetrical facts  as  they  appear  from  the  medical  testimony  or 
otherwise.  In  the  majority  of  cases  it  is  futile  to  extend  the 
inquiry  more  than  three  weeks  later  or  earlier  than  the  proba- 
ble date  of  the  conception  of  the  child.  If  we  assume  that  the 
length  of  the  period  of  gestation  is  about  ten  lunar  months  or 


1  Humphrey  v.  State,  78  Wis.  569, 
571;  Ginn  v.  Com.,  5  Litt.  (15  Ky.) 
300;  Burris  v.  Court,  34  Neb.  187, 191; 
Davison  v.  Cruse,  47  Neb.  829,  66  N. 
W.  Rep.  823;  Goodwine  v.  State,  5 
In. 1.  App.  63,  31  N.  E.  Rep.  554; 
Whitman  v.  State,  34  Ind.  360;  Peo- 
ple v.  Kaminsky,  73  Mich.  637,  639, 
41  N.  W.  Rep.  833;  State  v.  Giles,  103 
N.  Car.  391 ;  State  v.  Britt,  78  N.  Car. 
439,  440;  Scharf  v.  People,  34  111.  App. 
400;  Holcomb  v.  People,  79  111.  409; 
Easdale  v.  Reynolds,  143  Mass.  126, 
128,  9  N.  E.  Rep.  13;  Bowen  v.  Reed, 
103  Mass.  46;  Com.  v.  Moore,  3  Pick. 
(Mass.)  194,  197;  Sabins  v.  Jones,  119 
Mass.  167,  171;  Swisher  v.  Malone,  31 
W.  Va.  442;  State  v.  Karver,  65  Iowa 
53,  55 ;  Olsen  v.  Peterson,  33  Neb.  358 ; 
Sang  v.  Beers,  20  Neb.  365;  Benham 
v.  State,  91  In<l.  82;  Walker  v.  State, 
6  Blackf.  (Ind.)  1  ;  Marks  g. State,  101 
Ind.  353;  People  v.  Schildwachter,  5 


App.  Div.  346,  39  N.  Y.  Supp.  288; 
State  v.  Coatney,  8  Yerg.  (Tenn.)  210; 
Short  v.  State,  4  Harr.  (Del.)  568; 
Kintner  v.  State,  45  Ind.  175;  Craw- 
ford r.  State, 7  Baxt.  (Tenn.)  41  ;  Anon, 
37  Miss.  54;  People  v.  Keefer,  104 
Mich.  83.  "In  this  class  of  cases  an 
innovation  has  been  made  in  the  strict 
rules  of  cross-examination,  to  permit 
the  defendant  to  ask  the  mother  wheth- 
er, within  the  period  of  gestation,  she 
has  had  intercourse  with  other  men." 
By  the  court  in  Holcomb  v.  People,  70 
111 .  409. 

2Meyncke  v.  State,  68  Ind.  401. 

'State  v.  Read,  46  Iowa  469  ;  People 
v.  Kaminsky,  73  Mich.  637,  639,  41  X. 
W.  Rep.  833;  McCoy  v.  People,  65  111. 
439;  Williams  v.  State  (Ala.,  1897),  21 
So.  Rep.  463,  465 ;  State  v.  Perkins,  1 1 7 
N.  Car.  698,  23  S.  E.  Rep.  274. 

•Carran  v.  People,  35  111.  App.  275. 


598  CRIMINAL  EVIDENCE.  §  533 

nine  calendar  months,  or  say  about  two  hundred  and  eighty 
days,  a  question  as  to  intercourse  with  any  other  man  at  a  date 
a  month  or  more  prior  or  subsequent  to  the  beginning  of  the 
period  of  gestation  would  clearly  be  inadmissible,  unless  it  is 
also  shown  that  the  illicit  intimacy  existed  between  the  same 
persons  at  or  very  near  to  the  time  of  conception.1 

If  the  prosecutrix  is  proved  to  have  indulged  in  promiscu- 
ous sexual  intercourse  with  other  men  at  or  about  the  date  she 
alleges  the  child  was  conceived,  she  will  not  be  permitted  to 
state  while  on  the  stand  that  she  became  pregnant  as  the  re- 
sult of  any  particular  act  of  intercourse.  Her  testimony  on 
that  point  would  be  merely  an  inference.  If  she  had  sub- 
mitted to  the  embraces  of  several  men  on  or  about  the  same 
date,  it  is  impossible  for  any  person,  in  view  of  her  physical 
organization  and  for  physiological  reasons,  to  state  positively 
who  is  the  father  of  the  child,  however  readily  paternity  may 
be  determined  when  sexual  intercourse  with  only  one  man  is 
in  question.2 

§  533.  Admissibility  of  the  admissions  and  declarations  of 
the  parties. — In  some  of  the  states  the  declarations  of  the 
mother  of  the  child  made  during  her  travail  and  which  are 
continued  or  persisted  in  subsequently,  and  which  charge  a 
particular  person  with  its  paternity,  are  received  as  original 
evidence  both  for  and  against  the  accused.3     Whether  declara- 

1  State  v.  Phillips,  5  Ind.  App.  122,  ber  1,  1887?"  Pike  v.  People,  34  111. 
31  N.  E.  Rep.  476;  Ronan  v.  Dugan,  App.  112;  and  see,  also,  Swisher  v. 
126  Mass.  176,  177;  State  v.  Granger,  Malone,  31  W.  Va.  442,  7  S.  E.  Rep. 
87  Iowa  355,  54  N.  W.  Rep.  79 ;  Duck  436.  It  is  the  exclusive  right  of  the 
v.  State,  17  Ind.  210;  Olson  v.  Peter-  jury  to  determine  the  probable  length 
son,  33  Neb.  358;  Scharf  v.  People,  34  of  the  period  of  gestation  as  a  ques- 
111.  App.  400;  Sabins  v.  Jones,  119  tion  of  fact  on  the  circumstances  of 
Mass.  167.  In  a  recent  case  where  the  case.  Davison  v.  Cruse,  47  Neb. 
the  child  was  born  on  the  8th  day  of  829,  66  N.  W.  Rep.  823. 
June,  1888,  the  prosecutrix  was  re-  2 Baker  v.  State,  47  Wis.  111. 
quired  to  answer  the  question,  "Did  3  Mass.  Public  Stat.,  c.  85,  16  Maine 
you  have  sexual  intercourse  with  any  Rev.  Stat.,  c.  97,  section  6.  The  ex- 
other  man  than  the  accused  at  any  pression  used  in  one  statute  is,  "  hav- 
time  between  August  10  and  Novem-  ing  been  put  to  the  discovery  of  the 


§  533       EVIDENCE  IN  BASTARDY  PROCEEDINGS.         599 

tions  of  this  sort  are  receivable  in  the  absence  of  a  statute  is 
an  undecided  point.  Some  authorities  hold  that  they  arc  not 
admissible  either  to  corroborate  her  testimony  or  as  evidence 
directly  on  the  issue.1  But  elsewhere  it  has  been  held  that 
statements  made,  both  before  and  after  the  birth  of  the  child, 
that  the  accused  is  its  father,  should  be  received.2 

Declarations  are  to  be  regarded  as  made  during  travail,  if 
they  are  proved  to  have  been  uttered  between  the  instant  that 
the  pains  of  labor  begin  and  the  moment  when  the  delivery 
of  the  child  is  completed  by  the  severance  of  the  umbilical 
cord.8 

They  will  be  admitted  though  the  child  is  born  subsequently 
to  the  making  of  the  charge  against  the  defendant.4 

The  admission  of  the  prosecutrix  that  another  man  is  the 
father  of  the  child  is  receivable  as  a  contradictory  statement 
for  the  purpose  of  impeachment.5 

But  the  statements  of  third  persons  as  to  the  paternity  of  the 
child  not  made  in  her  presence  and  constituting  no  part  of  the 
res  gestae  of  any  relevant  act  are  never  received.6  On  the  other 
hand  all  the  utterances  of  the  accused  having  any  bearing  on 
his  relations  with  the  prosecutrix,  as,  for  example,  his  promise 
to  marry  her,  are  admissible  against  him.7 

truth  of  such  statement  at  the  time  of  admissions  of   the  prosecutrix  as  to 

her  travail."     Wilson  v.  "Woodside,  the  paternity  of  the  child  ought  to  be 

57  Maine  489.  received  with  extreme  caution.     Mor- 

1  State  v.  Hussey,  7  Iowa  409;  Side-  ris  v.  State,  101  Ind.  560, 562.  A  state- 
linger  v.  Bucklin,  64  Maine  371,  373.  ment  by   the   prosecutrix    that  it  is 

2Harty  v.  Malloy,  67  Conn.  339,  35  necessary  for  a  woman  to  get  in  the 

Atl.   Rep.   259;    Benton   v.   Starr,   58  family  way  in  order  to  procure  a  hus- 

Conn.  285;  Welch  v.  Clark,  50  Vt.  386.  band  is  not  admissible   as  impeach- 

sTraceyw.  Noyes,  143  Mass.  449,  451,  ment.     Johnson    v.   People,   140  111. 

9  N.  E.  Rep.  830;  Scott  v.  Donovan,  350,  29  N.  E.  Rep.  895. 

153  Mass.  378,  379.     For  other  defini-  6  Prince   v.    Gundaway,   157   Mass. 

tions    of    "travail  "    see    Dennett  v.  417,  418,  32  N.  E.  Rep.  653;  Benton  r. 

Kneeland,  6  Maine  460 ;  Bacon  v.  Har-  Starr,  58  Conn.  285. 

rington,5Pick.(Mass.H>3,64;Drowne  7  Laney  v.  State.  109  Ala.  34,  19  So. 

v.  Stimpson,  2  Mass.  441,443,  444,  lim-  Rep.    531;    Woodward   v.    Shaw,    18 

iting  it  to  the  birth  of  the  child.  Maine  304,  307  ;  Sale  v.  Crutchfield,  8 

4  Bowers  v.  Wood,   143   Mass.   182,  Bush    (Ky.)  636;  Miller  v.  State,  110 

184,  9  N.  E.  Rep.  534.  Ala.  69,  20  So.  Rep.  392.    Evidence  by 

5Houser  r.  State,  93  Ind.  22S.     The  the  physician  who  attended  the  pros- 


600 


CRIMINAL    EVIDENCE. 


§534 


Some  of  the  statutes  require  that  an  accusation  made  during 
pregnancy  shall  be  continued  in  subsequently.  This  require- 
ment that  the  mother  shall  be  constant  refers  only  to  the  name 
of  the  man  who  is  accused.  A  variance  as  regards  the  time, 
place  or  other  circumstance  of  the  intercourse  will  not  render 
the  declaration  incompetent,  though  perhaps  affecting  its  cred- 
ibility.1 In  conclusion  it  may  be  said  that  the  mother  is  a 
competent  witness  to  prove  her  own  declarations,2  though  such 
evidence  may  be  more  valuable  and  convincing  if  coming  from 
another  witness.3 

§  534.  Evidence  of  the  preliminary  examination. — When, 
prior  to  the  trial,  a  preliminary  examination  is  had,  the 
record  thereof  may  be  given  in  evidence  in  favor  of  either 
party  at  the  trial,  and,  if  lost,  the  contents  may  be  proved 
orally  by  testimony  from  the  prosecutrix  or  any  other  person 
who  was  present.4  But  the  judgment  in  an  action,  brought 
by  the  mother  to  recover  damages  for  her  seduction,  is  not 
competent  to  prove  the  paternity  of  the  child  in  a  subsequent 
bastardy  proceeding.5 


eeutrix  that  she  told  him  who  was  the 
father  of  the  child  is  not  a  communi- 
cation of  information  within  a  statute 
forbidding  disclosures  of  information 
necessary  to  enable  him  to  act  as  a 
surgeon  or  to  prescribe  as  a  physician. 
People  v.  Cole  (Mich.,  1897),  71 N.  W. 
Rep.  455. 

1  Woodward  v.  Shaw,  18  Maine  304 ; 
Totman  v.  Forsaith,  55  Maine  360. 

2  Reed  v.  Haskins,  1 16  Mass.  198, 199. 

3  Murphy  v.  Spence,  9  Gray(Mass.) 
399.  "The  general  object  was  to  give 
competency  to  a  witness,  who,  by  the 
general  rule  of  evidence,  would  be  ex- 
cluded as  interested,  in  a  case  in 
which,  without  such  evidence,  the 
mischief  intended  to  be  cured  would 
be  irremediable.  The  danger  of  such 
evidence  was  not  overlooked  by  the 


legislature  and  was  intended  to  be 
guarded  against  by  placing  the  wit- 
ness in  such  circumstances  at  the 
time  of  her  accusation  as  would  in  all 
probability  inrure  her  veracity.  In 
the  time  of  her  utmost  peril,  with  the 
fear  of  death  and  judgment  before  her 
eyes,  it  was  wisely  thought  that  a 
false  accusation  would  rarely  if  ever 
be  made;  upon  the  same  principle 
that  the  declarations  of  a  person  in 
extremis  which  may  affect  the  life  of  a 
party  accused  of  murder  are  admitted, 
though  not  under  the  sanction  of  an 
oath."  Maxwell  v.  Hardy,  8  Pick. 
(Mass.)  560,  on  p.  561. 

4Hoff  v.  Fisher,  26  Ohio  St.  7,  8; 
Stoppert  v.  Nierle,  45  Neb.  105. 

5  Glenn  v.  State,  46  Ind.  368. 


§  535       EVIDENCE  IN  BASTARDY  PROCEEDINGS.         601 

§  535.  Evidence  of  compromise  or  settlement. — Inasmuch 
as  a  proceeding  to  affiliate  a  bastard  child  is  generally  regarded 
as  in  the  nature  of  a  civil  action,  no  objection,  either  in  law  or 
upon  the  ground  of  public  policy,  can  exist  to  prevent  a  com- 
promise or  extra-judicial  settlement  between  the  parties.  A 
note  given  to  settle  such  an  action  is  valid  and  based  on  good 
consideration,  and  can  not  be  invalidated  on  the  grounds  that 
such  a  compromise  is  against  public  policy,  or  contrary  to 
good  morals.1  The  primary  object  of  the  proceeding  is  not  to 
determine  the  paternity  of  the  child,  but  to  compel  its  father 
to  provide  for  its  support.  If,  therefore,  the  defendant  is 
willing  to  do  this  voluntarily,  the  proceedings  ought  to  be  dis- 
missed; for  if  the  action  is  brought  to  a  termination,  favorable 
to  the  complainant,  the  defendant  can  not  be  compelled  to  do 
any  more.8 

Hence,  it  is  always  relevant  to  show  in  evidence  that  the 
defendant  has  voluntarily  recognized  the  claim  of  the  illegiti- 
mate child,  and  has  entered  into  an  agreement  by  which  he  is 
effectually  bound  to  provide  for  its  care  and  support,  and  for 
the  lying-in  and  nursing  expenses  and  medical  attendance  of 
the  mother. 

1  Billingsley  v.  Clelland,  41  W.  Va.        2  See  People  v.  Wheeler,  60  111.  App. 
234,  23  S.  E.  Rep.  812.  531. 


INDEX. 


[References  are  to  Pages.] 


ABDUCTION, 

definition  of,  404. 

evidence  to  prove  the  enticement,  405. 

amatory  letters  as  admissions,  405. 

necessity  for  corroborating  the  prosecutrix,  40"). 

burden  to  show  non-consent  of  guardian,  406. 

presumption  and  burden  of  proving  chastity,  406. 

evidence  to  show  age  of  prosecutrix,  407. 

for  prostitution  or  concubinage,  408. 

ABILITY, 

of  accused  to  commit  assault,  416. 

ABORTION, 

incriminating  articles  may  be  produced  in,  59. 

at  common  law  and  by  statute,  409. 

intention  to  produce,  410. 

evidence  of  similar  crimes,  410. 

victim  of,  is  not  accomplice,  410. 

statutory  corroboration,  when  required,  410. 

evidence  against  one  of  several  indicted  for,  411. 

burden  of  proof  to  show  necessity  for,  411. 

declarations  by  the  victim  of,  134,  411. 

evidence  of  physical  condition  and  illness,  412. 

medical  evidence  and  evidence  of  the  post  mortem,  414. 

exception  to  rule  of  privileged  communications,  414. 

attempts  to  procure  by  accused  in  bastardy,  595. 

ABSENCE, 

of  lawful  spouse  as  defense  in  bigamy,  460. 

ABSENCE  OF  WITNESS, 

when  intentional,  constitutes  contempt,  313. 
permits  admission  of  testimony  at  former  trial,  319. 

(603) 


604  INDEX. 

[References  are  to  Pages, ,] 
ABSENCE  OF  WITNESS—  Continued. 

distinction  between  civil  and  criminal  cases,  320. 

mode  of  proving,  323,  324. 

procured  by  connivance,  324. 

cross-examining  and  confronting,  324. 

mode  of  proving  testimony  in  case  of,  325-327. 

continuances  granted  because  of,  328-332. 

in  extradition,  555. 

ABSENT  WITNESS, 

when  impeachable,  330-332. 

ABUSIVE  WITNESS, 

judge  may  silence,  265. 

ACCEPTANCE, 

of  wager  need  not  be  express,  132. 

ACCIDENT, 

evidence  to  show,  111. 

burning,  the  result  of,  not  arson,  429. 

ACCOMPLICE, 

who  is,  85. 

court  may  determine  that  witness  is,  85. 

competency  of,  in  general,  86. 

competency  of,  when  jointly  indicted,  86. 

when  separately  indicted,  86. 

when  acquittal  of  may  be  directed,  86. 

when  competent  for  the  state,  87,  88. 

immunity  when  testifying  for  the  state,  89. 

separate  trial  of, when  necessary,  90. 

competency  when  convicted,  90. 

good  character  of,  not  relevant,  90. 

right  of  defense  to  prove  agreement  to  testify,  90. 

credibility  and  corroboration  of,  91,  92. 

when  competent  for  each  other,  86. 

victim  of  abortion  is  not,  410. 

evidence  of,  in  adultery  must  be  corroborated,  445. 

person  involved  in  crime  of  incest  is  an,  457. 

may  be  compelled  to  testify  in  bribery,  514. 

what  constitutes,  in  bribery,  514. 

testimony  of,  to  prove  gambling,  533. 

what  constitutes,  in  gambling,  533. 

ACCOUNTANT, 

may  testify  to  general  result,  56. 


INDEX.  00f> 

[References  are  t<>  I'ayes.] 
ACCOUNTS  AND  PAPERS, 

seized  by  search  warrant,  not  competent,  73. 

ACCUSED, 

presumption  of  innocence  in  favor  of,  24-26. 

when  compelled  to  sustain  burden  of  proof,  32. 

requiring  or  permitting  to  testify  before  grand  jury,  38-40. 

wife  of,  as  witness  before  grand  jury,  38. 

how  prior  arrest  may  be  shown,  61 . 

articles  taken  from,  as  evidence  against,  59,  60. 

may  be  identified  by  photograph,  61,  <>•_'. 

inspection  of,  by  jury,  65-68. 

may  be  compelled  to  stand  for  identification,  65. 

identification  of,by  voice,  70. 

when  may  be  recalled,  79. 

can  not  be  compelled  to  meet  independent  crimes,  107. 

declarations  of,will  be  received  in  his  favor,  123,  124. 

dying  declarations  received  in  favor  of,  139,  140. 

demeanor  of,  subsequent  to  crime  may  be  shown,  144-158. 

silence  of,  charged  with  crime,  153-158. 

insanity  of,  192-210. 

intoxication  of,  205-210. 

his  right  to  examine  and  confront  witness,  271. 

charged  with  larceny,  may  testify  to  intent  in  taking  goods,  352. 

possession  of  stolen  property  by,  may  be  shown,  359-364. 

affidavit  of  on  application  for  new  trial,  579-581. 

in  bastard y  proceedings,  587. 

admissions  of  as  to  paternity  of  child,  599. 

presence  of  at  autopsy  not  necessary,  373. 

evidence  to  connect,  with  weapon,  374. 

peaceable  character  of,  390. 

his  presence  near  scene  of  crime,  432. 

can  not  be  compelled  to  make  footprints  for  comparison,  437. 

pecuniary  condition  of,  364,  505. 

right  to  testify  in  extradition,  558. 

fugitive  character  of  in  extradition,  557. 

prior  conviction  of  to  increase  punishment,  569-577. 

ACCUSED  AS  A  WITNESS, 

statutory  competency  of,  71,  72. 

in  Federal  courts,  72. 

not  compellable  to  testify,  72. 

credibility  of,  73. 

interest  may  be  considered,  73. 

jury  may  not  arbitrarily  reject  evidence  of,  73. 

mode  of  examination,  73. 

may  testify  to  intent,  73. 


606  INDEX. 

[References  are  to  Pages."] 
ACCUSED  AS  A  WITNESS—  Continued. 
must  be  permitted  to  explain,  74. 
cross-examination  of,  75. 
limiting  cross-examination  of,  75,  76. 
incriminating  and  disgracing  questions  put  to  the,  77. 
prior  arrest,  indictment,  conviction,  imprisonment  and  vagrancy  of, 

may  be  shown,  77. 
is  entitled  to  same  rights  as  other  witness,  77,  78. 

statutory  limitation  of  cross-examination  of,  as  to  relevant  matters,  78. 
mode  of  carrying  on  cross-examination  of,  79,  80. 
statutes  are  strictly  construed,  79. 
recalling,  79. 

privileged  communications  on  cross-examination,  79,  80. 
waiver  of  privilege  to  refuse  to  divulge  confidential  communications,  80. 
conclusiveness  of  answers  by,  80. 
contradicting  the,  80. 
bad  character  of,  for  veracity,  81 . 
impeaching,  as  in  case  of  other  witness,  81. 
rights  of,  81. 

commenting  on  failure  to  testify,  82. 
exclusion  of  comment  on  silence  of,  82-84. 
failure  to  testify  as  to  particular  matters,  85. 
may  be  compelled  to  testify  in  bastardy  proceeding,  588. 

ACQUITTAL, 

directing,  of  accomplice,  87. 
directing,  of  accused,  342. 

evidence  of,  does  not  exclude  proof  of  other  forgeries,  487. 
of  felon,  can  not  be  proved  under  charge  of  compounding  felony,  518, 
519. 

ADMISSIONS, 

receivable  though  involuntary,  171. 

in  connection  with  possession  of  forged  writings,  488,  489. 

by  accused,  to  show  falsity  of  pretenses,  502. 

to  avoid  granting  a  continuance,  330,  331. 

relevancy  of,  in  embezzlement,  350,  351. 

ADULTERATION, 

when  proof  of  knowledge  and  intent  is  unnecessary,  537. 

presumption  of  guilty  knowledge,  538. 

inferences  from  possession  of  food,  538. 

presumption  of  fraudulent  purpose,  538. 

variance  in,  538. 

evidence  furnished  by  analysis,  538. 

showing  incompetency  of  chemist,  539. 


INDEX.  607 

[References  are  to  Pages."] 
ADULTERY, 

defined  and  distinguished  from  fornication,  443. 
may  be  proved  from  circumstances  of  parties,  444. 
evidence  tending  to  prove  other  adulteries,  115,  444. 
evidence  of  accomplice  to  show,  445. 
evidence  of  character  of  accomplice,  445. 
marriage  must  be  proved,  445. 
marriage  certificate  is  evidence,  446. 
evidence  of  eye-witness  of  ceremony,  446. 
presumption  of  continuance  of  marriage,  446. 
living  in,  447, 

of  prosecutrix  to  impeach  her,  473,  474. 
proof  of  by  prosecutrix  in  bastardy,  596. 

ADVERSE  WITNESS, 

may  be  impeached,  288,  289. 

AFFIDAVITS, 

to  prove  contempt,  521. 

use  and  character  of,  in  extradition,  560. 

form  and  contents  of,  on  motion  for  new  trial,  578-581. 

AFFIRMATIVE, 

burden  of  proof  on  party  alleging,  33,  35. 

AGE, 

competency  of  prosecutrix  to  testify  to,  407. 
witness  may  give  opinion  of,  407. 
family  reputation  of,  not  admissible,  407. 
jury  may  determine,  from  inspection,  65,  407. 
ignorance  or  belief  of  accused  as  to,  of  female,  408. 
physician  may  testify  to,  467. 

AGENT  OF  ATTORNEY, 

communication  to  or  by,  when  privileged,  216. 

ALIBI, 

defined,  183. 

plea  of,  how  regarded,  183. 

burden  of  proof  of,  184. 

relevancy  of  distance  and  time  to  travel,  185. 

evidence  of  probability  sufficient,  185. 

testimony  of  witness  who  has  traveled  over  the  route,  186. 

evidence  of  conversations,  declarations  and  rumors  to  prove,  187. 

impeachment  of,  187. 

evidence  to  show  persons  present,  187. 


608  INDEX. 

[References  are  to  Pages."] 
ALIBI — Continued. 

inadmissibility  of  self-serving  declarations  as  to  whereabouts,  187. 

need  not  be  proved  beyond  reasonable  doubt,  188. 

evidence  of,  should  always  be  considered,  188. 

failure  to  prove,  189. 

cautioning  the  jury  on  evidence  to  show,  189,  190,  191. 

ALTERATION, 

of  writing  when  forgery,  482,  483. 

ANALYSIS, 

value  of,  in  case  of  homicide  by  poison,  377,  378. 
ANIMALS, 

variance  in  proving  species  and  genus  of,  44,  357. 
variance  in  proving  species  of,  maliciously  injured,  369. 
evidence  to  show  running  at  large  of,  309,  369. 
presumption  of  malice  towards  owner  of,  369,  370. 

ANIMOSITY, 

between  deceased  and  accused,  385-394. 
between  deceased  and  third  person,  390. 

ANSWER, 

of  witness,  must  be  responsive,  266,  267. 

APPOINTMENT, 

best  evidence  of,  57,  58. 

of  officer,  evidence  to  show,  514. 

invalidity  of,  can  not  be  shown,  514. 

APPREHENSION  OF  DANGER, 

as  a  defense  to  charge  of  carrying  concealed  weapons,  544. 

ARREST, 

warrant  for,  oral  proof  of  contents,  51. 

of  accused,  how  shown,  54. 

resistance  to,  as  indicating  consciousness  of  guilt,  147-152. 

silence  while  under,  153-158. 

confessions  while  under,  163. 

privilege  of  witness  from,  316. 

of  witness  for  contempt,  315. 

under  warrant  in  extradition,  554-568. 

ARSON, 

evidence  of  locality  of  building,  429. 
evidence  of  actual  burning  required,  429. 
variance  in  proof  of  premises,  429. 
threats  and  declarations  by  accused,  430. 


INDKX.  609 

[References  are  to  Pages."] 
A.RSON     Conti 

remoteness  in  time  of  the  threats,  430. 
circumstantial  evidence  to  show  intent,  430. 
proof  of  other  crimes,  100,  431. 
preparation  to  commit,  432. 

ARTIFICE, 

employed  to  seduce  female,  11". 

See  Promise  of  Marriage. 
confession  obtained  by,  169. 

ASSAULT, 

evidence  of  intoxication  to  negative  specific  intent,  207-208. 
though  causing  miscarriage,  not  abortion,  410. 

ASSAULT  AND  BATTERY, 

definition  of,  415. 

relevancy  of  present  ability  of  assailant,  415. 

intention  to  do  bodily  harm,  416. 

intent  in,  may  be  proved  from  circumstances,  417. 

proof  of  other  crimes,  418. 

character  of  weapon  used,  418. 

evidence  of  threats  and  previous  hostility,  419. 

ASSAULTING  OFFICER,  509,  510. 

ATTACHMENT, 

may  be  granted  accused  to  compel  attendance  of  witnesses,  309,  310. 
accused  must  show  he  has  used  due  diligence,  310. 
in  the  absence  of  a  statute  is  discretionary,  313,  314. 

ATTENDANCE  OF  WITNESSES, 

obtained  by  use  of  subpoena,  308. 
when  necessary  to  pay  witness  fees,  308. 

right  of  accused  to  obtain  compulsory  attendance  of  witness,  309,  310. 
subpoena  duces  tecum,  310. 

validity  of  reason  for  not  producing  papers  called  for,  31 1,  312. 
service  of  subpoena  and  time  allowed  to  witness,  312. 
recognizance  to  procure,  312. 
obstructing,  313,  452. 
change  of  venue  to  procure,  314,  315. 
intentional  absence  of  witnesses,  315. 
privilege  of  witness,  316. 
when  in  custody  or  military  service,  317. 
in  extradition,  555. 
39— Cr.  Ev. 


610  INDEX. 

[References  are.  to  Pages.~\ 
ATTORNEYS  AT  LAW,  PRIVILEGED  COMMUNICATIONS  TO, 
rule  at  common  law,  215. 
statutory  extension  of  rule,  215. 

doctrine  applicable  in  criminal  as  in  civil  trials,  215. 
payment  of  retainer  not  required,  216. 
when  made  to  agent,  216. 
third  person  may  testify,  216. 

must  have  been  made  while  relation  of  attorney  and  client  existed, 
217,  218. 

facts  not  regarded  as,  217,  218. 

statements  intended  to  be  repeated  to  third  parties,  218. 

made  in  contemplation  of  future  crime,  219. 

knowledge  by  attorney  that  crime  is  to  be  committed,  219,  220. 

permanency  of  privilege,  220. 

clients  may  waive  all  rights  under,  220. 

what  acts  of  the  client  constitutes  a  waiver,  express  or  implied,  221. 

contained  in  writings,  222. 

when  attorney  is  acting  as  a  conveyancer,  222. 

AUTOPSY, 

presence  of  accused  at,  not  necessary,  374. 

opinion  based  on,  admissible,  374. 

remoteness  of,  in  time,  374. 

expert  may  testify  whether  properly  conducted,  375. 

in  homicide  by  poisoning,  377-379. 

AUTHENTICATION, 

of  foreign  evidence,  564,  565,  566. 

AVARICE, 

as  motive  for  homicide,  383. 


B 

BAD  CHARACTER, 

See  Character  of  Accused. 
of  accused  for  veracity  may  be  shown,  81. 
BANK, 

corporate  existence  of,  how  proved,  492,  493. 

BANK  NOTES, 

variance  in  proof  of,  357. 

BANK  OFFICIAL, 

may  testify  to  handwriting,  493. 


INDEX.  Oil 

[Itefrri  uii  s  art  to   /'".vs.] 

BASTARDY, 

conviction  of,  not  admissible  in  seduction,  448. 

BASTARDY  PROCEEDINGS, 

whether  criminal  or  civil  in  their  character,  586 

by  whom  begun,  586,587. 

burden  of  proof  in, 588. 

doctrine  of  reasonable  doubt  not  applicable,  588,  589. 

inspection  of  the  child  by  the  jury  in,  589  591. 

presumption  of  legitimacy,  591-  594. 

the  relations  of  the  parties,  594,  595. 

competency  and  credibility  of  the  prosecutrix,  595. 

variance  in  proving  the  date  of  the  conception,  596. 

reputation  of  the  mother,  596. 

sexual  intercourse  of  the  prosecutrix  with  other  men,  596-598. 

declarations  during  travail,  598. 

admissions  of  the  accused,  599. 

evidence  of  the  preliminary  examination,  600. 

evidence  of  compromise  or  settlement,  601. 

BELIEF, 

of  accused  in  genuineness  of  notes,  501. 

BELIEF  UNDER  OATH, 

relevancy  of,  as  impeachment,  290. 

BETTING, 

See  Gambling. 
BIAS, 

may  be  rebutted  by  confirmatory  statements  made  out  of  court,  298. 
of  witness  may  be  shown  by  cross-examination,  273,  274. 

flIGAMY, 

defined,  458. 

annulment  or  dissolution  of  first  marriage  may  be  shown,  459. 

that  marriage  is  voidable  is  not  relevant,  458. 

belief  of  accused  as  to  death  of  former  spouse,  459. 

absence  of  former  spouse,  460. 

proof  of  marriage,  461-464. 

fjLOOD-HOUNDS, 

evidence  obtained  by  use  of,  438. 

BLOOD-STAINS, 

evidence  to  show,  58. 

expert  evidence  to  character  of,  397. 

articles  containing,  may  be  introduced  in  evidence,  398. 

evidence  to  show  stains  were  made  by  human  blood,  398. 

size  and  nature  of,  may  indicate  weapon  used,  399. 


012  INDEX. 

[References  are  to  Pages.] 
BODILY  FEELINGS, 

declarations  descriptive  of,  411. 

BOUNDARIES,    ' 

primary  evidence  of,  61. 
judicial  notice  of,  28,  29,  46. 

BRANDS, 

on  cattle  may  be  proved,  357. 

BREAKING  IN, 

evidence  to  prove,  434. 
may  be  constructive,  434. 

BRIBERY, 

defined,  513. 

unsuccessful  attempts  constitute,  513. 

when  proof  of  intent  is  required,  514. 

intent  in,  may  be  inferred  from  language,  514. 

judicial  notice  of  official  character,  514. 

validity  of  official  appointment,  514. 

evidence  of  accomplice,  515. 

immunity  of  accomplice  testifying  in,  515. 

other  similar  acts  of,  516. 

of  voters,  516. 

of  jurors,  512. 

BRIBING  WITNESS, 

when  relevant  to  prove,  78. 

BRUISES, 

evidence  of,  on  body  of  woman  raped,  472,  473. 

BUILDINGS, 

photographs  of,  62. 

BURDEN  OF  PROOF, 

requires  prima  facie  case  made  out,  30. 

how  accused  may  meet,  30. 

general  rule  casts,  on  state,  32,  33. 

how  met  by  presumption  of  innocence,  32,  33. 

on  accused  to  show  distinct  defense,  34. 

under  negative  allegations,  33. 

in  case  of  rape,  34. 

facts  peculiarly  within  knowledge  of  party  alleging,  34. 

to  show  license  and  nonage,  34. 

to  show  qualifications  under  statute,  34,  517,  518. 

distinguished  from  presumption  of  innocence,  30. 


INDEX. 

[Beference*  are  to  Pages."] 
BURDEN  OF  PROOF—  Continued. 

to  show  venae  is  on  prosecution,  45. 

to  show  sense  of  approaching  death,  129. 

to  show  confession  was  voluntary,  160. 

to  show  aWrt,  183-185. 

to  show  insanity,  195-198. 

to  show  intoxication,  207,  209. 

to  show  malice  in  homicide,  380,  381. 

to  show  self-defense,  441. 

to  show  non-consent  in  case  of  abduction  of  minor,  406. 

to  show  necessity  for  abortion,  411. 

to  show  female  seduced  was  unmarried,  453. 

to  show  chastity  of  female  seduced,  453. 

to  show  thai  unchaste  female  had  reformed,  455. 

to  show  material  facts  in  bigamy,  458. 

to  show  validity  of  marriage,  461. 

to  show  falsity  of  pretenses,  502. 

in  extradition,  556. 

to  show  prior  conviction  to  increase  penalty,  574-577. 

to  show  jurisdictional  facts  on  application  for  a  new  trial,  581. 

BURGLARY, 

breaking  in  and  entering  must  be  in  night-time,  433. 

night-time  defined,  433. 

preparations  to  commit,  434. 

evidence  to  prove  breaking  in  and  entering,  434. 

view  of  the  premises,  435. 

facts  from  which  breaking  in  may  be  inferred,  436. 

evidence  to  show  owner's  consent  to  entrance,  435. 

proving  ownership  of  goods,  436. 

comparison  of  foot-prints,  436,  437. 

inferences  from  possession  of  burglar's  tools  by  accused,  438. 

evidence  of  other  crimes,  439. 

the  criminal  intention,  439. 

presumption  from  possession  of  stolen  goods,  440,  441. 

articles  from  the  premises  as  evidence,  442. 

BURGLAR  TOOLS, 

evidence  of  purchase  of,  438. 

finding  of,  near  scene  of  crime  and  possession  of,  by  accused,  438. 

BURNING, 

must  be  proved  in  arson,  429. 

BY-STANDEES, 

exclamations  and  cries  of,  in  homicide,  124-126,  395. 


611 


(314  INDEX. 

[References  are  to  Pages. ,] 

c 

CAPACITY  FOR  CRIME, 

of  infant,  27,  28. 

CARNAL  KNOWLEDGE, 

necessity  and  mode  of  proof  of,  476. 

CARRYING  AWAY  IN  LARCENY, 

must  be  proved  beyond  a  reasonable  doubt,  353. 
evidence  to  connect  accused  with  the,  353. 

CARRYING  CONCEALED  WEAPONS, 

See  Concealed  Weapons. 
CATTLE, 

maliciously  injuring,  369. 

CAUSE, 

of  death,  may  be  shown,  351,  371. 

CAUTIONING  THE  ACCUSED, 
effect  of,  164. 

CEREMONY, 

of  marriage,  evidence  of,  461-464. 

CERTIFICATE  OF  MARRIAGE, 

not  excluded  by  provision  conferring  right  to  be  confronted  with  wit- 
nesses, 462, 
though  not  properly  authenticated  may  be  received  as  of  res  gestae,  462. 
in  foreign  country,  463. 
presumption  of  validity,  464. 
character  of,  as  evidence,  461,  462. 

CERTIFIED  COPIES, 

as  evidence  in  extradition,  566. 

CERTIFIED  COPIES, 
as  evidence,  463. 

CHALLENGE, 

sending,  mode  of  proof,  540. 

CHANCE,  GAME  OF, 

defined,  531. 

CHARACTER, 

of  woman  seduced,  453-455. 
of  witness,  3. 


[NDKX.  015 

[Be/en  na  s  are  to  l'>"jes.'] 

CHARACTER  OF  ACCUSED, 

when  open  to  attack,  81,  82. 

defined,  95. 

presumed  to  be  good,  95. 

traits  ol  which  are  relevant,  96,  97. 

in  ease  of  homicide,  !»". 

in  case  ol  rape,  97. 

good  character  of  associates,  97. 

when  bad,  (J7,  98. 

state  can  not  attack  in  first  instance,  98. 

rebutting  evidence  to  show  bad,  98. 

for  veracity,  when  admissible,  98. 

effect  and  operation  of  evidence  of,  99,  100. 

evidence  of,  is  never  to  be  disregarded,  100. 

evidence  of,  is  never  conclusive,  101. 

evidence  of,  may  raise  reasonable  doubt,  101. 

mode  of  proving,  101. 

reputation  alone  relevant,  102. 

derogatory  rumors  regarding,  102. 

specific  bad  actions  not  admissible  to  prove,  103. 

remoteness  of  evidence  of,  104. 

evidence  of,  subsequent  to  date  of  crime,  104. 

grade  and  moral  nature  of  the  crime,  104,  105. 

evidence  of  disposition  not  relevant  to  prove,  105. 

number  of  witnesses  allowed,  106. 

as  an  habitual  criminal,  569,  et  seq. 

in  bastardy,  590. 

CHARACTER  OF  DECEASED, 

not  relevant  for  state  in  first  instance,  385,  386. 

may  be  proved  where  evidence  raises  presumption  of  self-defense,  386. 

mode  of  proving,  387. 

specific  acts  of  violence  not  received  to  prove,  388. 

evidence  of  threats  to  show,  388. 

CHARGE  OF  CRIME, 

in  interstate  extradition,  558,  560. 

CHARGING  ON  EVIDENCE, 

right  and  duty  of  court,  336. 

laying  down  rules  of  law  wdiich  govern  the  application  of  the  evidence, 

337-340. 
assumption  of  facts  by  court  in,  340. 
necessity  of  some  evidence  to  sustain  charge,  341. 


616  INDEX. 

[References  are  to  Pages.] 
CHASTITY, 

in  abduction  of  females,  26,  406. 

of  female  seduced,  453,  454. 

presumption  of,  455. 

proof  of,  455. 

reputation  for,  455. 

of  prosecutrix  in  rape,  479-481. 

of  prosecutrix  in  bastardy,  596. 

CHEMICAL  ANALYSIS, 

results  of,  as  evidence,  377,  378. 
precautions,  necessary  in,  377,  378. 
proof  of  adulteration  furnisbed  by,  538. 
discrediting  results  of,  538. 
when  conclusive,  539. 

CHEMISTS, 

their  competency,  378. 
weight  of  evidence,  378. 

CHILD, 

may  explain  delay  in  complaint  of  rape,  471. 

competency  of,  as  witness,  253. 

credibility  of,  254. 

may  be  asked  leading  questions  on  direct  examination,  262,  263. 

dying  declarations  by,  143. 

confessions  by,  176. 

CIRCUMSTANCES, 

when  corroborating  each  other,  5. 

CIRCUMSTANTIAL  EVIDENCE, 

nature  of,  6. 

corroboration  by  connected  and  concurrent  circumstances,  6. 

amount  of,  required  to  convict,  67. 

jury  must  believe  beyond  reasonable  doubt,  8. 

degree  of  certainty  required,  8. 

must  be  some  direct  evidence  ast-basis  for,  78. 

every  reasonable  hypothesis  must  be  excluded,  8. 

corpus  delicti  in  homicide  may  be  proved  by,  10. 

but  proof  must  be  convincing,  10. 

proof  by,  must  be  beyond  a  reasonable  doubt.  16,  et  seq. 

verdict  of  guilty  on,  7. 

prejudice  against,  7. 

conclusiveness  of,  7. 

duty  of  jury  to  reconcile,  23. 

duty  of  court  to  charge  on,  8. 


[NDEX.  61 


[Beferencet  are  to  Payes."] 
CIRCUMSTANTIAL  EVIDENCE     Continued. 

admissible  to  prove  venue,  46,  849. 
of  enticement,  406. 

to  prove  intent,  4lM. 
to  prove  promise  of  marriage,  448,  450. 
to  prove  intent  to  defraud,  420,  601. 
to  show  falsity  of  pretenses,  503. 

CLEMENCY, 

confession  made  under  promise  of,  160,  ei  spy. 

CLERGYMAN,  PRIVILEGED  COMMUNICATIONS  TO, 

not  recognized  under  common  law,  223. 
statutory  regulation  of,  2'2'A. 
constitutionality  of  statutes  regulating,  224. 

CLOTHING, 

of  victim  of  homicide,  59,  60. 

COHABITATION, 

as  evidence  of  marriage,  461. 
need  not  be  proved  in  bigamy,  464. 

COLLATERAL  FACTS, 

primary  evidence  of,  54. 

how  far  competent  on  cross-examination,  271,  272. 

bias  and  prejudice  of  witness  are  not,  272. 

COLOR  OF  OFFICE, 

taking  under,  must  be  proved  in  extortion,  516. 

COMITY, 

between  states,  554. 
COMPARISON, 

of  shot  may  be  proved,  375,  376. 

of  articles  of  clothing  worn  by  accused,  437. 

proof  of  handwriting  by,  493. 

standard  of,  must  be  relevant  writing,  493. 

opinion  evidence  on,  494. 

of  foot-prints,  400,  436-438. 

of  foot-prints  in  burglary,  436. 

can  not  be  made  compulsorily,  437. 

voluntary  is  admissible,  438. 

COMPETENCY  OF  TESTIMONY, 

constitutional  rights  of  the  accused,  69-70. 
the  accused  as  a  witness,  72,  et  seq. 


618 


INDEX. 


[References  are  t<>  "Pages.] 
COMPETENCY  OF  TESTIMONY—  Continued. 
judge  may  properly  comment  upon,  264. 
of  newly-discovered  evidence,  583. 
of  dying  declarations,  136-138. 
of  owner  of  stolen  goods  as  witness,  354. 
of  witness  to  testify  to  age,  407. 
of  husband  or  wife  in  bigamy,  460. 
of  prosecutrix  as  witness  in  rape,  473. 
of  obligor  on  forged  writing,  483. 
of  prosecutrix  in  bastardy,  595. 

of  witness  to  show  non-existence  of  fictitious  person,  491. 
of  proof  in  extradition,  556,  558,  560,  562,  563. 

COMPETENCY  OF  WITNESSES, 

definition  and  formal  requirement  of  oath,  247,  248. 

under  what  circumstances  witness  may  affirm,  248. 

religious  belief  as  affecting,  249,  250. 

insanity  of  witness,  251,  252. 

deaf  mutes,  253. 

children  as  witnesses,  253. 

persons  convicted  of  infamous  crimes,  255-259. 

compounding  offenses,  462. 

COMPROMISE, 

when  offer  may  be  shown,  147,  475. 

COMPULSORY  PROCESS, 
right  of  accused  to,  309. 
constitutional  provisions,  310. 
in  extradition,  555. 

CONCEALED  WEAPONS, 
open  carrying,  542. 

intent  of  concealment  may  be  shown,  541-543. 
mode  of  concealment,  543. 
relevancy  of  purpose  of  concealment,  543. 
apprehension  of  danger,  544. 
character  of  accused  as  officer  or  traveler,  545. 

CONCEALMENT, 

when  relevant,  147-152. 

of  property  under  charge  of  embezzlement,  348. 

necessity  for  proof  of,  349. 

CONCLUSIONS, 

not  admissible  when  contained  in  dying  declarations,  136. 


[NDKX.  619 

[References  are  to  /'";/'>s.] 
CONCLUSIVENESS, 

of  circumstantial  evidence,  9. 

of  answers  by  accused,  80. 

of  replies  on  cross-examination,  278-274. 

of  answers  as  to  irrelevant  matters,  297. 

of  evidence  furnished  l>y  lactometer, 

of  executive  determination  that  accused  is  ;i  fugitive  from  justice,  687. 

of  evidence  by  accused,  ">80. 

CONCUBINAGE, 
defined,  409. 
adduction  for  purposes  of,  409. 

CONDUCT, 

of  parties  to  seduction,  relevancy  of,  to  prove  promise  of  marriage,  449, 

450. 
of  accused  as  a  test  of  perjury,  525. 

CONDUCT  OF  ACCUSED, 

See  Consciousness  op  Guilt. 
CONFESSIONS, 

definition  and  classification  of,  160. 

must  be  voluntary,  160. 

question  of  voluntary  character  of,  when  for  judge  and  when  for  jury, 
160, 

burden  of  proof  to  show  voluntary  character  of,  161,  162. 

voluntary  character,  when  presumed,  L62. 

cross-examination  as  to  voluntary  character  of,  162. 

under  what  circumstances  involuntary,  162. 

made  under  arrest  are  not  rendered  involuntary  thereby,  163. 

effect  of  cautioning  the  accused,  164,  165. 

when  made  after  duress  is  removed,  164. 

when  made  under  oath,  165. 

made  at  coroner's  inquest,  165. 

at  preliminary  examination,  166. 

of  conspirators,  169. 

when  obtained  by  artifice  or  deception,  169. 

made  under  misunderstanding  or  contained  in  privileged  communica- 
tions, 170. 

when  made  under  influence  of  intoxication,  171. 

distinguished  from  admissions,  171. 

when  facts  discovered  admit  parts  of,  172. 

when  procured  by  persons  in  authority,  173, 174. 

need  not  be  spontaneous,  174,  175. 

may  be  obtained  by  questioning,  175. 


020  INDEX. 

[References  are  to  Pages, ,] 
CONFESSIONS—  Continued. 

procured  by  promise  of  collateral  benefit,  175. 

made  by  signs  or  gestures,  175. 

of  treason,  176. 

by  infants,  176. 

when  made  in  open  court  by  plea  of  guilty,  177-178. 

by  persons  not  indicted,  178. 

value  of,  as  evidence,  179. 

mode  of  proof  and  corroboration  when  required,  180. 

may  be  rejected  in  part,  by  jury,  180. 

to  priest  or  clergyman,  not  privileged  at  common  law,  223. 

by  habitual  criminal  of  prior  conviction,  574. 
See  also,  Declarations  ;  Consciousness  of  Guilt  ;  Flight  of  the  Accused  ; 

Silence. 

CONFIRMATORY  STATEMENTS, 
when  may  be  proved,  297,  298. 

CONFLICT, 

of  presumptions,  26,  455. 

CONFRONTING  WITNESS,  322. 

CONGRESS, 

power  of,  to  commit  for  contempt,  278. 

CONNECTED  CRIMES, 

proof  of,  in  homicide,  382,  431. 

CONSCIOUSNESS, 

of  nearness  of  death,  127,  et  seq. 

CONSCIOUSNESS  OF  GUILT, 
facts  showing,  144. 

demeanor,  language,  etc.,  of  accused  indicating,  145. 
falsehoods  and  concealment  indicating,  145, 146. 
how  falsehood  may  be  shown,  146. 

intoxication,  excitement,  fear  and  mental  pre-occupation  of  accused  in- 
dicating, 147. 
offers  of  compromise,  147. 
flight,  and  attempts  to  escape,  148. 
possession  of  tools  to  break  jail,  148. 
motive  of  flight  must  be  considered,  149,  150. 
resistance  to  arrest,  as  indicating,  151. 
fabricating  evidence,  152. 
silence  as  evidence  of,  153,  155. 


INDEX.  621 

[Referenrrs  are  to  Paget. "\ 
CONSENT, 

to  sexual  intercourse,  in  incest,  4f)7. 
reputation  of  woman  to  show,  179,  WO. 

physician  can  not  testify  to,  in  rape,  471,  472. 

CONSENT,  ABSENCE  OF, 

must  be  proved  in  rape,  4. 
resistance  to  show.  4<i.">,  4tifi. 
presumption  of  in  case  of  infant,  467. 
statutes  regulating,  407. 

CONSPIRACY, 

definition  of,  548. 

circumstantial  evidence  of,  549. 

details  of,  need  not  be  proved,  549,  550. 

acts  and  declarations  of  fellow-conspirators,  550. 

admissible  declarations  must  be  made  in  furtherance  of,  551,  552. 

order  of  proof,  552,  553. 

CONSULAR  CERTIFICATE, 

of  authentication  in  international  extradition,  564. 

CONTEMPT, 

refusal  to  be  sworn  or  testify  is,  278. 

refusal  to  answer  impertinent  question  is  not,  279. 

refusal  to  obey  subpoena  constitutes,  312. 

failure  to  testify  before  grand  jury  is,  40. 

defined,  519. 

inherent  judicial  power  to  punish  f,or,  519,  520. 

direct  and  constructive,  distinguished,  520. 

affidavits  to  prove,  521. 

accused  may  introduce  affidavits  and  examine,  522. 

CONTEMPT  PROCEEDINGS, 

compelling  accused  to  testify  in,  72. 

CONTINUANCE, 

presumption  of,  26,  195,  380. 

discretionary  power  of  court  to  grant,  because  of  absence  of'  witness, 

326,  327. 
party  asking,  must  show  due  diligence  and  materiality  and  competency 

of  evidence,  328-330. 
admission  of  facts  to  avoid,  330-332. 

CONTRADICTION, 

of  prosecutrix  in  rape,  469. 

of  collateral  matters  brought  out  on  cross-examination,  273. 


022  INDEX. 

[References  are  to  Pages."] 
CONTRADICTORY  STATEMENTS, 

of  accused  may  be  shown  on  his  cross-examination,  76. 

may  be  brought  out  on  cross-examination  as  impeachment,  293. 

time  and  place  of,  must  be  stated,  293,  294. 

when  made  at  prior  trial  or  coroner's  inquest,  294. 

when  witness  claims  he  does  not  remember  making,  295. 

contained  in  depositions  or  other  writings,  295,  296. 

writings  containing  must  be  read  and  shown  to  witness,  296. 

CONVERSION, 

of  property,  in  embezzlement,  346,  350. 

CONVEYANCER, 

communications  to  attorney  in  capacity  of,  219. 

CONVICTION, 

plea  of  former,  243-246. 

may  be  shown  to  impeach  witness,  302. 

of  felony,  mode  of  proof,  462. 

of  habitual  criminals,  572. 

CORONER'S  INQUEST, 

best  evidence  of  proceedings  at,  51. 
confessions  at,  167. 

CORPORATE  EXISTENCE, 

of  bank  on  which  forged  check  is  drawn,  492. 
may  be  proved  orally,  492,  493. 
evidence  of  reputation,  493. 

CORPUS  DELICTI  OF  HOMICIDE, 

necessity  for  and  relevancy  of  evidence  to  prove,  312. 

declarations  of  deceased  to  show,  373. 

expert  evidence  to  show  manner  of  death,  373. 

relevancy  of  photographs  on,  373. 

evidence  of,  as  disclosed  by  the  autopsy,  374,  377. 

CORROBORATION, 

in  general,  7. 

when  required  to  confession,  181. 

competency  of  evidence  to  corroborate  accomplice,  90-92. 

necessity  of,  of  accomplice  as  a  witness,  92. 

detectives  and  decoys  not  within  rule  requiring,  85,  86. 

extent  of,  required,  91-93. 

when  required  in  abduction,  405. 

required  on  charge  of  abortion  against  physician,  411. 

of  accomplice  in  adultery,  445. 

of  prosecutrix  in  seduction  must  be  of  material  facts,  451. 


INDEX.  623 

[References  are  i<>  Pages.] 
CORROBORATION—  Continued. 

of  prosecutrix,  in  seduction  may  be  by  dxcomsta  rices  which  accompany 

marriage  engagement,  462. 
of  prosecutrix  in  rape  by  details  of  complaint,  162. 
necessity  for,  in  perjury,  512,  626. 
by  newly-discovered  evidence,  584,  .~>85. 
of  prosecutrix  in  bastardy  proceeding,  595. 

COUNTERFEITING, 

intent  ami  guilty  knowledge,  430,  496,  i'»7. 
presumption  of,  from  possession  of  tools,  4!i7. 
necessity  of  evidence  to  show  resemblance,  498,  499. 
evidence  of  similar  crimes,  497. 
evidence  of  genuineness,  499. 

COUNT  KK  PARTS, 

use  and  effect  as  evidence,  49. 

COUNTY  LINES, 

judicial  notice  of,  28,  29. 

COURTS  OF  RECORD, 

power  of  to  punish  for  contempt,  278. 

must  have  jurisdiction  to  exercise  power,  279. 

CREDIBILITY, 

as  affected  by  character  of  witness,  4. 

of  accused  as  a  witness,  73,  74. 

of  accused,  jury  is  to  determine,  75. 

of  accused,  how  tested  on  cross-examination,  77. 

of  evidence  of  good  character,  99. 

of  dying  declarations,  138. 

of  confessions,  179,  180. 

of  insane  witness,  252. 

of  children  and  deaf  mutes,  253,  254. 

of  witness,  judicial  remarks  on  may  furnish  grounds  for  new  trial,  265. 

as  tested  by  the  cross-examination,  271. 

of  woman  on  whom  abortion  procured,  410,  411. 

of  prosecutrix  in  bastardy,  595. 

of  defendant's  admissions  of  marriage,  4tJ2. 

of  female  affected  by  delay  in  complaining,  469. 

two  witnesses  required  in  false  swearing,  512. 

of  witness  to  prove  concealment  of  weapon,  541. 

of  newly-discovered  evidence,  582-584. 

CRIES, 

of  by-standers,  124-126. 
of  woman  raped,  469-471. 


624  INDEX. 

[References  are  to  Pages.] 

CRIMES, 

See  Other  Crimes. 

CRIMINAL  INTENT, 

absence  of,  presumed  in  case  of  infant,  27,  28. 
evidence  of  other  crimes  admissible  to  show,  107. 
in  arson,  necessity  of  evidence  to  show,  429. 

in  burglary,  may  be  infered  from  commission  of  felony  or  from  pres- 
ence of  accused  in  house,  439. 
present  in  entering  must  be  shown,  439. 
in  embezzlement,  346. 
in  larceny,  352. 

may  be  inferred  from  the  circumstances,  352. 
in  malicious  mischief,  367. 

presumption  and  burden  of  proof  in  homicide,  380,  381. 
in  forgery,  485. 

may  be  general  in  forgery,  485. 
circumstantial  evidence  of,  in  forgery,  486. 
other  crimes  to  show,  in  forgery,  486,  489. 
in  bigamy,  458,  459. 
in  counterfeiting,  496. 

evidence  of  other  crimes  to  show,  in  counterfeiting,  497. 
to  defraud  in  false  pretenses,  501. 
in  obstructing  justice,  510. 
in  embracery,  512. 
in  bribery,  513. 
in  extortion,  516. 
to  screen  felon,  518. 
in  allowing  escape,  522. 
in  aiding  escape,  524. 

CRIMINALITY, 

burden  of  proof  to  show  in  extradition,  556. 
legal  proof  of,  557. 
indictment  to  prove,  557. 
copies  as  proof  of,  566. 

CRIMINAL  LIBEL, 

province  of  jury  to  determine  intent  in,  334. 

denned,  423. 

evidence  to  prove  publication  of,  423. 

meaning  of  the  language  used  in,  424. 

the  intention  in,  424,  425. 

truth  as  a  defense,  425,  426. 

CRIMINATING  QUESTIONS, 

See  Incriminating  Questions. 


INDEX. 


621 


[Beference*  are  to  Pages. "\ 

CROSS-EXAMINATION, 

by  accused  before  grand  jury  aot  allowed,  36. 

of  insanity  expert,  202  203. 

as  to  voluntary,  character  of  confession,  162. 

value  and  importance  of,  269,  270. 

of  witness  to  band-writing,  270. 

waiver  of  right  to,  269. 

evidence  of  witness  should  be  stricken  out  on  refusal  of  right  to,  270. 

confined  to  matters  brought  on  direct,  271. 

value  of,  when  conducted  rapidly,  271. 

to  test  credibility,  271-276. 

questions  on,  to  ascertain  memory,  knowledge,  etc.,  of  witness,  272. 

discretion  of  court  to  limit,  272. 

repetition  of  evidence  given  on  direct  examination  on,  273. 

prolongation  of,  273. 

repetition  of  questions  on,  274. 

collateral  facts,  274. 

impeaching  witness  on,  271. 

irrelevant  facts  brought  out  on,  can  not  be  contradicted,  273. 

hostility  and  bias  of  witness  may  be  shown  on,  272. 

recalling  witness  for,  269. 

of  accomplice  testifying  as  witness,  92. 

of  accused  testifying  as  witness,  7:;. 

as  to  vagrancy,  76. 

power  of  court  to  exclude  disparaging  questions  during,  78,  79. 

to  ascertain  voluntariness  of  confession,  162. 

of  witness  who  is  absent  at  subsequent  trial,  322. 

as  to  details  of  complaint  in  rape,  469. 

in  extradition,  563,  564. 

CROSS-EXAMINATION  OF  ACCUSED, 

when  limited  to  matter  brought  out  on  direct  examination,  76. 

questions  to  test  credibility,  76. 

limited  by  statute,  78. 

court  may  interfere  to  limit,  78. 

mode  of  conducting,  79. 

privileged  communications  on,  79. 

CRUEL  PUNISHMENT, 
what  is  not,  571 . 

CUMULATIVE  EVIDENCE, 

newly-discovered  evidence  must  not  be,  584. 

CUSTODY, 

acts  and  statements  of  accused  while  in,  153-156.  L62. 
40— Cr.  Ev. 


626  INDEX. 

[Beferences  are  to  Pages."} 

D 

DANGER, 

apprehension  of,  as  a  defense  to  carrying  concealed  weapon,  544,  545. 

DEAD  BODIES, 

photographs  to  identify,  61,  62. 

DEADLY  WEAPONS, 

when  court  and  when  jury  may  determine  what  are,  418,  419. 

DEAF  MUTE, 

slips  used  in  conversation  with,  how  proved,  56. 

DEAF  MUTES  AS  WITNESSES, 

common  law  incompetency  and  present  competency  of,  253. 
may  testify  in  writing  or  by  signs,  253. 

DEATH, 

provable  by  circumstantial  evidence  on  trial  for  homicide,  10, 12. 

burden  of  proof  to  show,  24,  25. 

by  suicide,  presumption  against.  27. 

of  witness  testifying  on  former  trial,  320. 

when  sudden  presumed  to  result  from  natural  causes,  373. 

evidence  to  show  cause,  time  and  means  of,  372,  378. 

cause  of,  may  be  shown  to  be  abortion,  414. 

presumption  of,  from  unexplained  absence,  459. 

DECEASED, 

identification  of,  in  homicide,  376,  377. 

evidence  of  character,  habits  and  disposition  of,  385-388. 

evidence  to  show  reputation  of,  but  not  specific  acts  of  turbulence,  387. 

evidence  of  threats  by,  388. 

DECEASED  WITNESS, 

testimony  of,  may  be  proved,  321. 
death  of,  how  proved,  321. 

DECEPTION, 

confession  obtained  by,  169. 

DECLARATIONS, 

forming  part  of  the  res  gestai,  116-126,  393. 

in  consciousness  of  approaching  death,  127-143. 

by  accused,  inadmissible  to  prove  alibi,  186,  187. 

to  prove  absence  of  material  witness,  321. 

of  deceased  owner  of  goods  stolen,  354. 

explaining  possession  of  stolen  property,  when  admissible,  363,364. 

of  accused  admissible  to  prove  malicious  intent,  367,  368. 


INDEX. 

[Reference*  are  to  Pages.] 
DECLARATIONS— Continued. 

of  third  parties,  395. 

admissibility  of,  in  abort ion,  ill,  412. 

of  prosecutrix  in  Beduction,  when  relevant,  4">o. 

accompanying  possession  of  burglar's  tools. 

of  accused,  in  Beduction,  450. 

of  accused,  to  prove  his  marriage,  462. 

of  female  in  rape,  468  471. 

of  accused  to  show  guilty  knowledge,  4%. 

DECLARATIONS  OF  CONSPIRATORS, 
when  admissible,  550. 

must  be  made  during  existence  of  conspiracy,  551. 
order  of  proving,  552. 

DECLARATIONS  DURING  TRAVAIL, 
admissibility  of,  598. 
must  be  persisted  in,  599. 
length  of  period  of  travail,  599,  (500. 

DECOY, 

confession  to,  through  trick,  169,  170. 

DECOY  LETTERS, 

use  and  credibility  of,  536,  537. 

DEFILEMENT  OF  FEMALE  SERVANT, 
character  of  woman  not  material,  456. 

DELAY, 

in  making  complaint  in  rape  may  caus,e  its  rejection,  470. 
as  determining  credibility  of  complaint,  470. 
may  be  explained,  471. 

DELIVERY, 

of  forged  writing  as  evidence  of  uttering,  489. 

DEMAND, 

evidence  to  prove,  in  embezzlement,  347,  348. 

DEMEANOR, 

when  indicating  guilt,  144-158. 

of  accused,  as  evidence  of  insanity.  200-202. 

of  accused  towards  prosecutrix  in  seduction,  449,  450. 

DEMONSTRATION, 

distinguished  from  reasonable  doubt,  15. 

DENIAL  OF  GUILT, 

by  accused,  when  competent,  153-158. 


627 


628  INDEX. 

[References  arc  to  Payes.~\ 
DEPOSITIONS, 

when  receivable  before  grand  jury,  36. 

DESCENDANT, 

insanity  of,  when  relevant,  201. 

DESTRUCTION, 

need  not  be  total  in  malicious  mischief,  368. 

DETECTIVES, 

motives  to  misrepresent,  5. 

zeal  of,  may  produce  untrue  confession,  180. 

evidence  of,  in  extradition,  567. 

DEVICE, 

See  Trick. 
DILIGENCE, 

in  application  for  continuation,  328-330. 

burden  of  proving,  in  escape,  522. 

in  case  of  newly-discovered  evidence,  579. 

DIRECT  EVIDENCE, 

when  required  to  prove  corpus  delicti,  9. 

DIRECT  EXAMINATION, 

of  witness,  260. 

leading  questions,  when  may  be  put  on,  261,  263. 

DIRECTING  VERDICT, 

when  proper,  342. 

DISAPPEARANCE, 

of  person  supposed  to  have  been  murdered,  9. 

DISCHARGE  FROM  PRISON, 

of  habitual  criminal,  575. 

DISCOVERY, 

of  property  stolen,  inadmissible  confession  leading  up  to,  172,  173,  366. 

DISCRETION  OF  COURT, 

to  limit  cross-examination,  273. 
to  grant  continuance,  326. 

DISGRACING  QUESTIONS, 

as  to  irrelevant  matters,  77. 

on  cross-examination,  76. 

limitations  upon  the  right  to  ask,  301,  302. 

involving  previous  life,  social  connections,  etc.,  of  witness,  301. 


iM)i:\  . 

[References  are  to  Pages. 2 
DISPOSITION  OF  ACCUSED, 

not  competent  to  prove  character,  105. 
to  con  unit  adultery,  448. 

DISQUALIFICATION  OF  JUROR,  8. 
DIVORCE, 

granting  of,  as  evidence  of  prior  marriage,  462. 

DOCUMENTARY  EVIDENCE, 

proper  certification  of,  560,  561-564. 

DOG, 

malicious  injury  to,  369. 

evidence  obtained  by  use  of,  in  tracking,  438. 

DOMESTIC  ANIMALS, 

whether  dogs  are  or  not,  369. 

DOMESTIC  RELATIONS, 

evidence  of,  in  incest,  458. 

DOUBT, 

See  Reasonable  Doubt. 

DRAWINGS, 

See  Paintings. 

DRESS, 

articles  of,  when  admissible,  59,  60. 

DROWNED  PERSON, 

identification  of,  by  photograph,  61,  62. 

DRUGS, 

adulteration  of,  537-539. 

DRUNKENNESS, 

See  Intoxication. 

DUELING,  487. 

DURESS, 

effects  of,  in  excluding  confessions,  159-165,  172-174. 

DUTY  OF  COURT, 

to  instruct  on  presumption  of  innocence,  LM. 

DUTY  OF  JURY, 

to  consider  evidence  of  good  character,  101. 


62'J 


630  INDEX. 

[References  are  to  Pages.] 
DYING  DECLARATIONS, 

definition,  128. 

religious  element  in,  128. 

motive  present  in,  128. 

may  be  prompted  by  revenge,  128. 

will  be  presumed  to  be  made  under  sense  of  religious  responsibility,  129. 

must  be  made  under  sense  of  approaching  death,  129. 

evidence  of  sense  of  approaching  death,  from  declarant's   own  words, 

130. 
from  sending  for  priest,  131. 
from  sending  for  physician  or  making  will,  131. 
from  character  of  wounds,  131. 
period  intervening,  132. 
expectation  of  recovery  subsequent  to,  133. 
not  admissible  to  prove  all  crimes,  133. 
admissible  in  homicide,  133. 
not  receivable  in  abortion,  133,  412. 
in  cases  of  double  homicide,  135. 

distinguished  from  those  which  are  part  of  the  res  gestae,  135. 
necessity  for  reception  of,  136. 
opinions  contained  in,  when  admissible,  136. 
absence  of  cross-examination,  136. 
must  refer  to  act  of  killing,  when  inadmissible,  137, 
mode  of  proof  and  credibility  of,  140. 
competency  of,  is  for  the  court,  140. 
relevancy  and  weight,  141. 
is  evidence  for  the  accused,  140. 
as  well  as  against  him,  140. 
precise  language  of,  need  not  be  proved,  141. 
admissible  in  its  entirety,  141. 
may  be  contradicted  or  shown  to  be  untrue,  142. 
formal  examination  not  required,  142. 
persuasion  and  leading  questions,  142. 
made  under  narcotics,  142. 
if  written  writing  must  be  produced,  142. 
by  signs,  142. 
by  children,  113,  143. 

E 
ELECTIONS, 

bribery  at,  515. 

judicial  notice  of  times  of,  516. 

EMBEZZLEMENT, 

essential  facts  constituting,  345. 
intent  to  defraud,  346. 


[NDEX. 

[Reference*  are  t>>  Paget."] 
EMBEZZLEMENT—  Continued. 

intent  to  convert,  346. 

proving  other  nets  of,  847. 

proof  ol  demand  and  refusal  to  surrender,  347. 

proof  of  trust  relation,  347,  348. 
right  of  trustee,  348 
ownership  of  the  property,  348. 

evidence  of  efforts  to  conceal  or  dispose  of  property,  348,  3  19, 
relevancy  of  false  statements,  349. 
proof  of  venue  in,  by  circumstantial  evidence,  350. 
value  of  the  property  taken,  350. 
confessions  and  admissions  by  the  accused,  350. 

documentary  evidence,  checks  and  entries  in  account  books  by  de- 
fendant, 350. 

EMBRACERY, 

defined,  512. 

attempt  to  bribe  may  constitute,  512. 

criminal  intent  must  be  proved,  513. 

ENTICEMENT, 

in  abduction,  evidence  to  show,  405,  406. 
ENTRIES, 

as  evidence  against  accused,  351. 
ESCAPE, 

distinguished  from  prison  breach,  522. 

proof  of  actual  breaking  not  necessary,  522. 

intention  and  negligence  of  the  accused,  522-524. 

aiding  prisoner  to,  524. 

presumption  of  legality  of  process,  024. 

burden  of  proof  to  show  legality,  525. 

ESSENTIAL  DESCRIPTION, 

matter  of,  when  must  be  proved,  42. 
EXAMINATION, 

of  accounts,  primary  evidence  of,  56. 

by  jury,  when  may  be  compelled,  65,  66. 

to  ascertain  insanity  of  the  accused,  204. 

communications  made  to  physician  on,  228. 

EXAMINATION  OF  ACCUSED, 

as  witness  must  be  voluntary,  72. 
must  be  regularly  conducted,  73. 
explanation  during  the,  73. 
in  extradition,  563. 

Cross-Examination  of  Accused. 


632  INDEX. 

[Beferences  are  to  Pages."] 
EXAMINATION  OF  WITNESSES, 

direct,  260,  261. 

when  leading  questions  are  permissible,  261,  263. 

by  the  court,  264. 

judicial  remarks  during,  265. 

answers  must  be  responsive,  266. 

memorandum  to  refresh  memory  during,  267-271, 

cross-examination,  271. 

re-direct,  274. 

re-calling  witness,  during,  276. 

separation  of  witnesses  during,  277. 

refusal  to  testify,  278. 

interpreter  for  witness  unable  to  speak  English,  279. 

view  by  jury,  282. 

presence  of  accused  during,  285. 

experiments,  285,  286. 

EXCLAMATIONS, 

by  third  parties,  in  homicide,  124,  395. 
of  suffering,  when  admissible,  413. 
of  suffering,  received  in  rape,  468. 

EXCLUSION  OF  WITNESSES, 
from  court-room,  277. 

EXECUTIVE  COMMUNICATIONS, 
their  privileged  character,  213. 

EXHIBITION  IN  COURT, 

of  persons,  67. 

of  articles  of  personal  property,  58,  376,  439. 

EXONERATION, 

confessions  of  third  party  in,  of  accused,  178. 

EXPERIMENT, 

with  weapons,  not  allowable,  314. 

presence  of  defendant  while  making,  284. 

expert  may  testify  to,  where  conditions  are  reproduced,  286. 

shooting  bullet  through  clothing,  286. 

may  be  made  in  court  by  witness,  286. 

See  Inspection  ;  View. 

EXPERTS, 

qualifications  of,  378. 

their  views  on  insanity,  202. 


INDEX.  633 

[References  are  to  Pages.'] 
EXPERT  EVIDENCE, 

to  character  of  wounds,  372. 

to  show  how  wound  was  inflicted,  373. 

to  show  how  wound  was  made,  374. 

not  admissible  to  show  probable  position  of  deceased,  374. 

as  to  facts  revealed  by  autopsy,  374. 

as  to  use  of  cartridge,  376. 

in  case  of  poisoning,  377,  378. 

to  show  time  and  means  of  abortion,  414. 

results  of  autopsy  may  be  proved  in  abortion  by,  414. 

as  to  writing  based  on  standard  of  comparison,  494. 

as  to  condition,  age,  etc.,  in  rape,  471,  473. 

EXPLAINING  SILENCE  AND   FLIGHT, 
of  accused,  149,  150. 

EX  POST  FACTO  LAWS, 

statutes  increasing  punishments  for  habitual  criminals  are  not,  571. 

EXPRESSIONS, 

of  bodily  or  mental  feelings,  116-128. 
during  travail,  598-600. 

EXTORTION, 

defined, 516. 

necessity  for  proof  of  criminal  intent,  in,  516. 

ignorance  of  officer  as  defense,  517. 

taking  under  color  of  office  must  be  shown,  517. 

value  of  thing  taken  in,  517. 

collateral  attack  on  officer's  return,  518. 

EXTRADITION, 

treaties  and  statutes,  554. 

international  comity,  554. 

witnesses  and  subpoenas,  555. 

burden  of  proof  to  show  criminality,  556. 

legal  proof  of  criminality,  55b. 

fugitive  character  of  the  person  claimed,  557. 

evidence  in  interstate  extradition,  559. 

authentication  of  documentary  evidence  in  interstate  extradition,  560. 

records  of  sister  states  in  interstate  extradition,  561,  562. 

character  and  mode  of  proof  in  foreign,  563. 

authentication  of  diplomatic  certificates,  564. 

certified  copies  as  evidence  of  criminality,  565. 

proof  of  foreign  laws  and  treaties,  567,  568. 

EVIL  ACTIONS, 

evidence  of,  inadmissible  to  show  character,  103. 


634  INDEX. 

[Refererices  are  to  Pages.] 

F 

FABRICATION  OF  EVIDENCE, 

indicating  guilt,  152. 

FACTS, 

excluding  evidence  of  absent  witness  by  admitting,  330. 
exclusion  of  secondary  evidence  does  not  apply  to  collateral,  52. 
cross-examination  upon  particular,  102. 

FAILURE, 

to  prove  alibi,  effect  of,  189. 

FAILURE  OF  ACCUSED  TO  TESTIFY, 

when  new  trial  may  be  granted  for  comment  on,  83. 

no  presumption  from,  82. 

comment  on  not  allowed,  82. 

what  does  not  constitute  comment  on,  83. 

FAILURE  TO  PRODUCE  WITNESS, 
may  be  commented  on,  84. 

FALSE  ENTRIES, 

as  evidence  of  conversion  in  embezzlement,  349. 
intent  to  defraud  may  be  inferred  from,  485. 

FALSEHOODS, 

when  indicating  guilt,  152. 

FALSE  PRETENSES, 

denned  and  distinguished  from  larceny  and  embezzlement,  499,  500. 

evidence  to  show  intent  of  owner,  500. 

wide  range  of  circumstantial  evidence  to  show  intent  to  defraud  owner, 

501. 
evidence  of  similar  crimes  to  prove  intent,  502. 
burden  of  proof  to  show  nature  and  falsity  of  pretenbes,  503. 
must  have  been  calculated  to  deceive,  504. 
knowledge  of  falsity  by  accused,  504. 
value  of  property,  504. 

evidence  must  show  belief  and  reliance  of  person  defrauded,  504,  505. 
evidence  of  pecuniary  condition  of  accused,  505-507. 
not  necessarily  verbal,  507. 

FALSE  STATEMENTS, 

intent  to  defraud  inferred  from,  485,  501. 

FALSE  SWEARING, 

necessity  for  corroboration,  512. 


INDEX.  635 

[References  are  to  Pages.'] 
FALSITY, 

of  evidence  under  charge  of  perjury,  528. 

FEAR, 

confession  under  influence  of,  159-165. 

FEELINGS, 

declarations  to  prove,  116-126. 

FEES  OF  WITNESS, 

prosecution  need  not  pay,  308. 
in  extradition,  555. 

FELONY, 

when  conviction  of  renders  one  incompetent  as  witness,  255. 
conviction  of,  may  be  shown  to  discredit,  256. 

FEMALE, 

chastity  of,  when  presumed,  26,  406. 

FICTITIOUS  CRIME, 

confession  to  person  confined  with  accused  on  charge  of,  170. 

FICTITIOUS  PERSONS, 

forging  names  of,  491. 

evidence  of  existence  or  non-existence  of,  492. 
competency  of  witnesses  to  show  search  for,  492. 
accused  may  show  absence  of,  492. 

FIDUCIARY  RELATION, 

necessity  for  proof  of,  in  embezzlement,  347. 

FINANCIAL  CONDITION, 

of  accused,  when  relevant,  364,  495,  505-507. 

FLAGS, 

inscriptions  on,  may  be  proved  orally,  59. 

FLIGHT  OF  ACCUSED, 

presumption  of  guilt  from,  147. 

motives,  means  and  occasion  of,  147. 

may  be  shown  by  questions  to  accused,  147. 

can  not  be  proved  against  accomplice,  147. 

conclusiveness  of,  148. 

explanation  of,  149,  150. 

jurors  are  to  determine  weight  of,  149,  150. 

means  of,  may  be  shown,  151. 

motives  for,  need  not  be  proved  beyond  reasonable  doubt,  151. 

when  caused  by  threats,  151. 


636  INDEX. 

[References  are  to  Pages."] 
FOOD, 

adulteration  of,  537-539. 

FOOT-PRINTS, 

evidence  of,  364,  436,  437. 

FORCE, 

evidence  to  show  degree  of,  in  rape,  477. 

FORCIBLE  ENTRY,  491. 

FOREIGN  EXTRADITION, 

See  Extradition. 

FOREIGN  LAWS, 

how  proved,  567. 

FORGERY, 

defined,  482. 

fraudulent  alteration  or  insertion  of  words,  483. 

party  bound  is  competent,  483. 

competency  of  witness  to  prove,  484. 

what  constitutes  variance  in  proving  the  writing,  484. 

intent  to  defraud  must  be  proved,  485. 

general  intent  sufficient,  486. 

circumstantial  evidence  to  show  intent  in,  486. 

evidence  of  similar  crimes  to  show  intent,  486. 

possession  of  forged  papers  as  evidence  of  guilty  knowledge,  487,  488. 

proof  of  uttering,  489. 

the  writing  involved  in,  52,  490. 

evidence  to  show  venue,  47,  491. 

of  fictitious  names,  491,  492. 

existence  of  corporation,  492. 

expert  evidence  and  standard  of  comparison  to  prove  handwriting,  493, 
494. 

evidence  to  show  writing  forged  could  not  accomplish  purpose  intend- 
ed, 494. 

sufficiency  of  evidence,  495. 

pecuniary  condition  of  accused,  495. 

FORGETFUL  WITNESS, 

memory  of  may  be  refreshed  by  consulting  memoranda,  261-271. 
FORMER  JEOPARDY, 

trial  terminated  by  agreement  to  turn  states  evidence  does  not  consti- 
tute, 88. 
plea  of  former  conviction  or  acquittal,  243,  244. 
record  of  former  trial  as  evidence  under  this  defense,  244. 


INDEX. 


637 


[Reference*  are  t<>  "Pages. ) 

FORMER  JEOPARDY—  Continued. 

best  evidence  must  he  produced,  244. 

record  is  ■■(inclusive  on  both  parties,  244. 

evidence  to  show  thai  previous  trial  was  regular,  final  and  by  court 

having  competent  jurisdiction,  244. 
evidence  of  identity  of  crime  and  person,  245. 
increased  punishment  of  former  criminal  not  in  violation  of,  570. 

FORMER  TRIAL, 

testimony  of  witness  at,  319-325. 

FORMULA. 

of  oath  as  administered  to  witness,  247,  248. 

FORNICATION, 

See  Adultery. 
FRAUD, 

evidence  tending  to  prove  another  offense  in  prosecution,  502. 
enticement  of  female  by,  405. 
sexual  intercourse  obtained  by,  466. 

FRAUDULENT  INTENT, 

in  forging  name  of  fictitious  person,  491. 
in  passing  counterfeit  money,  497. 
in  false  pretenses,  501. 

See  Criminal  Intent. 

FUGITIVES  FROM  JUSTICE, 

See  Extradition. 
FURTHER  TESTIMONY, 

recalling  to  obtain,  276. 

FUTURE  CRIMES, 

communications  in  contemplation  of,  227. 

FUTURE  EVENTS, 

pretenses  regarding,  502. 

G 

GAMBLING, 

what  constitutes,  530. 

non-expert  may  describe  manner  of  playing,  531. 

necessity  to  prove  making  of  the  wager,  532. 

proof  of  playing  in  public,  532. 

conviction  of,  on  evidence  of  accomplice,  533 

keeping  house  for,  533,  534. 

presumptions  and  burden  of  proof,  534. 

instruments  for,  in  evidence,  534. 


038  INDEX. 

[References  are  to  Pages.] 
GENERAL  BAD  CHARACTER, 

may  be  shown  for  purposes  of  impeachment,  290. 
credibility  and  weight  of  evidence  of,  291. 

GENERAL  INTENT, 

to  defraud,  sufficient  in  forgery,  485. 

GENERAL  RESULT, 

best  evidence  of,  after  examination  of  books,  56,  351. 

GENERAL  VERDICT, 

character  and  analysis  of,  334. 

GENUINENESS, 

of  bank-notes,  must  be  proved  by  parol,  357. 
evidence  to  show,  of  writing,  490,  498. 

GEOGRAPHICAL  FACTS, 
judicial  notice  of,  45. 

GESTATION, 

intercourse  during  period  of,  596-598. 

GESTURES, 

dying  declarations  made  by,  142. 

confessions  by,  175. 

testimony  of  deaf  mutes  by,  253. 

GOOD  ACTIONS, 

evidence  of,  inadmissible  to  show  character,  102. 

GOOD  CHARACTER, 

See  Character  of  Accused. 
GOOD  FAITH, 

accused  may  testify  to,  when  charged  with  malicious  mischief,  352,  367. 
of  accused  may  be  shown  in  forgery  and  trial  for  passing  counterfeit 

money,  497. 
not  material  in  false  pretenses,  501. 
of  accused,  charged  with  permitting  escape,  522. 
in  discharging  prisoner,  524. 
of  accused  in  offering  to  marry  prosecutrix,  453. 
as  a  defense  in  bigamy,  458-460. 
of  officer,  relevancy  to  rebut  extortion,  516,  517. 

GOVERNOR  OF  STATE, 

when  he  may  refuse  to  testify,  213. 
mav  issue  warrant  in  extradition,  557. 


INDEX.  639 

[References  arc  to  Pages."] 
GRAND  JURORS,  PBIVILEGED  COMMUNICATIONS  TO, 
required  thai  an  impartial  investigation  may  be  had,  238. 
grand  juror  can  uot  be  compelled  to  disclose  tact    coming  to  his  knowl- 

edge  in  jury  room,  238,  "i.;1.*. 
statutory  regulation  of  the  competency  of  grand  jurors,  240. 
in  prosecutions  for  perjury,  '241. 

GRAND  JURY,  EVIDENCE  BEFORE, 
is  ex  parte,  35,  36. 

right  of  accused  to  offer,  36. 

must  be  properly  weighed,  36. 

should  be  competent  and  proper,  36,  37. 

best  evidence  required  to  be  given,  37. 

must  be  under  oath,  37. 

depositions  containing,  37. 

effect  of  receiving  incompetent  evidence,  37. 

obtained  by  compelling  accused  to  testify,  38. 

obtained  from  wife  of  accused,  38. 

must  be  some,  to  sustain  indictment,  38. 

accused  may  give,  voluntarily,  39. 

given  by  suspected  person,  39. 

given  by  co-defendant,  39. 

sufficiency  of,  39. 

belief  in  guilt  of  accused,  39. 

contempt  in  refusing  to  give,  40. 

GUILT, 

cross-examining  accused  as  to  acts  indicating  consciousness  of,  76. 
consciousness  of,  144-158. 

GUILTY, 

See  Plea  of  Guilty. 

GUILTY  KNOWLEDGE, 
in  extortion,  516,  517. 
of  adulteration,  537,  538. 
in  forgery  may  be  shown  by  proving  other  forgeries,  or  possession  of 

forged  paper,  486,  489. 
necessity  for  proof  of,  in  counterfeiting,  431,  496. 
evidence  of  other  crimes  admissible  to  show,  110. 
evidence  of  intoxication  to  show  absence  of,  207,  208. 

H 

HABEAS  CORPUS, 

to  procure  attendance  of  witness  in  jail,  318. 
in  extradition,  658. 


640  INDEX. 

[Beferences  are  to  Pages.] 
HABITUAL  CRIMINAL, 

increasing  punishment  of,  569,  576. 

•constitutionality  of  statutes,  570. 

date  of  conviction  of  prior  crime,  572. 

effect  of  pardon  of  prior  crime,  572. 

setting  out  former  conviction,  573. 

variance,  573. 

plea  of  not  guilty,  574. 

proof  of  discharge  from  prison,  575. 

proof  of  prior  conviction,  575. 

identity  of  accused,  577. 

HANDWRITING, 

primary  evidence  to  prove,  49,  50. 

HANDWRITING  OF  FORGED  PAPER, 

for  proof  hy  expert  evidence  and  comparison,  493. 
standard  of  comparison  must  be  relevant,  494. 
persons  familiar  with,  may  testify,  494. 
weight  of  evidence  to  prove,  494. 

HEREDITARY  INSANITY, 

when  it  may  be  shown,  201. 

HIDING, 

See  Flight  op  Accused. 
HOME, 

cross-examining  witness  to  show  he  has  abandoned,  77. 
HOMICIDE, 

corpus  delicti,  circumstantial  evidence  to  prove,  11. 

skull  of  victim  may  be  produced,  60. 

evidence  of  good  character  in  case  of,  97. 

declarations  in,  117. 

dying  declarations  in,  127-143. 

evidence  to  prove  the  corpus  delicti  and  the  manner  and  cause  of  death, 
372,  373,  374. 

expert  evidence  of  physicians,  372,  373. 

photographs  to  identify  the  corpse,  373. 

evidence  resulting  from  the  autopsy,  374. 

evidence  to  prove  weapon  or  other  means  producing  death,  375. 

admissibility  of  clothing  and  weapons  in  evidence,  59-60,  376. 

necessity  for  proving  the  identity  of  the  deceased,  376. 

doctrine  of  idem  sonans,  377. 

identification  of  the  body  of  the  deceased,  377. 

expert  evidence  in  case  of  poisoning,  378. 

evidence  resulting  from  chemical  analysis,  378. 

relevancy  of  evidence  to  show  poisoning,  378,  379. 


INDEX. 

[References  are  to  Pages."] 
HOMICIDE—  Continued. 

presumption  and  proof  ol  malice  in,  380. 

proof  of  other  crimes  which  arc  connected  or  were  the  motive  for,  108, 

382. 
evidence  of  facts  showing  consciousness  of  guilt,  382,  383. 
evidence  to  show  possible  motive,  .'!*:;,  3NJ. 
evidence  of  the  habits,  character  and  disposition  of  deceased,  386. 
nature  of  the  evidence  required  to  show  the  character  of  the  deceased, 

386-388. 
evidence  of  threats  made  by  the  deceased,  388-390. 
evidence  of  the  peaceable  character  of  the  accused,  390,  391. 
general  nature  of  and  mode  of  proving  threats  made  by  the  accuse,!, 

391 ,  392,  393. 
declarations  forming  part  of  the  res  gestce  of  the  crime,  329,  393,  394. 
declarations  of  third  parties  and  cries  and  exclamations  of  by-standers, 

124,  395. 
evidence  to  show  threats  against  deceased  made  by  third  persons,  395, 

396. 
animosity  existing  between  deceased  and  accused,  396. 
evidence  of  blood-stains,  397,  398,  399. 
conspiracy  to  commit,  400. 
preparations  to  commit,  400. 
evidence  of  foot-prints,  401. 
self-defense,  401. 

HOMICIDE  BY  POISON,  fc 

burden  of  proof,  377-379. 

HOPE, 

confessions  made  under  influence  of,  161-165. 

HORSES, 

maliciously  injuring,  369. 

HOSTILE  WITNESS, 

feelings  of,  may  be  shown  on  cross-examination,  274. 
his  replies  denying  hostility  may  be  contradicted,  274. 
may  be  impeached,  288. 

HOSTILITY, 

of  deceased,  when. relevant  in  homicide,  385-390. 
relevancy  of,  to  determine  intent  in  assault,  -119. 
of  accused  against  owner  of  house  burned,  430-432. 

HUMAN  VOICE, 

identification  by,  70. 
41— Ck.  Ey. 


642  INDEX. 

[References  ore  to  Pages."] 
HUSBAND  AND  WIFE, 

presumption  of  friendly  relations  between,  26. 

competency  of,  as  witnesses  for  or  against  one  another  at  common 

law,  230. 
•either  competent    against    the    other   where    personal    injury   is    in- 
volved, 231. 
credibility  of,  as  witnesses,  232. 
statutory  competency  of,  233. 

confidential  communications  passing  between,  233,  234. 
as  witnesses  for  or  against  an  accomplice  of  the  other,  234-236. 
existence  of  valid  marriage  must  be  proved,  236. 
competency  of,  in  trial  for  adultery,  444. 
competency  of,  in  bigamy,  459,  460. 
may  not  testify  to  non-access,  592-595. 

HYPOTHESIS  OF  INNOCENCE, 

must  be  wholly  excluded  by  criminating  circumstances  before  verdict 
of  guilty  can  be  rendered,  8. 

HYPOTHETICAL  QUESTION, 

may  be  put  to  physician  in  rape,  471. 

may  be  put  to  expert  witness  to  testify  to  insanity  of  accused,  205,  206. 

may  be  put  to  expert,  373,  374,  379. 

to  expert  in  abortion,  414. 

I 
IDEM  SONANS, 

what  constitutes,  43,  44,  377. 

IDENTIFICATION, 

of  body  of  person  murdered,  10. 

of  articles  of  personal  property,  58. 

of  persons  and  premises  by  photographs,  61-63. 

without  standing  up,  67. 

of  accused,  mode  and  effect  of  evidence,  67,  68. 

opinion  evidence  as  to  the  identity  of  the  accused,  68,  69. 

by  pointing  out  a  person,  69. 

forgetful n ess  of  witness  to,  69. 

relevancy  of  evidence  of,  69. 

hearsay  and  evidence  of  by-stander,  69. 

by  human  voice,  70. 

of  speaker  at  telephone,  70. 

evidence  of,  to  show  habitual  criminality,  577. 

silence  of  accused,  153. 

of  stolen  property,  variance  in,  357.. 

of  stolen  goods  by  hearsay,  inadmissible,  356. 


INDEX.  643 

[Reference*  are  to  Pages."] 
IDENTIFICATION—  Continued. 

of  money  or  securities  stolen,  367. 

of  weapon  found  in  possession  of  accused,  376. 

of  the  deceased  in  homicide,  376,  377. 

of  substance  chemically  analyzed,  378. 

of  stolen  goods,    1 12. 

of  deceased  person,  by  photographs,  373. 

IDENTITY, 

evidence  of  other  crimes  admissible  to  show,  114. 

of  offenses  under  plea  of  former  jeopardy,  burden  of  proof,  245. 

of  accused  with  person  before  convicted,  576. 

IGNORANCE, 

pleas  of  guilty  made  through,  177,  178. 

may  be  proved  to  rebut  intent  in  extortion,  517. 

IGNORANCE  OF  WITNESS, 

does  not  permit  his  impeachment  by  party  calling  him,  290. 

ILLEGITIMATE  CHILD, 

See  Bastardy  Proceedings. 

ILLNESS  OF  WITNESS,  319-332. 

IMPEACHMENT, 

of  accused  on  cross-examination,  80. 

of  accused  by  showing  bad  character,  80,  81. 

of  dying  declarations,  110. 

of  alibi,  187. 

of  witness  in  rape  by  showing  details  of  complaint,  469. 

of  prosecutrix  by  showing  adultery,  479. 

by  new  evidence,  583. 

IMPEACHMENT  OF  WITNESSES, 

can  not  be  done  by  party  calling,  287,  288. 

unexpectedly  hostile,  288. 

party  must  prove  his  surprise,  289. 

by  showing  bad  reputation  for  veracity,  290. 

never  by  specific  bad  actions,  201. 

by  showing  disbelief  under  oath,  291. 

by  showing  general 'bad  moral  character  aside  from  truthfulness,  292. 

by  proving  extra-judicial  statements  contradictory  of  testimony,  293.  294. 

by  contradictory  writing,  etc.,  295. 

contradictor}'  writings  must  be  read  to  witness,  296. 

by  contradiction  of  irrelevant  matters  not  allowable,  297. 

confirmatory  statements,  298. 


G44  INDEX. 

[References  are  to  Pages."] 
IMPEACHMENT  OF  WITNESSES—  Continued. 

by  evidence  of  their  previous  silence  when  it  was  their  duty  to  speak, 

298. 

reputation  for  truthfulness  of  witness  who  has  been  impeached,  299. 
by  asking  disgracing  questions,  299,  303. 
by  asking  incriminating  questions,  303-305. 
by  showing  interest  and  bias,  305. 

IMPLEMENTS, 

for  gambling  in  evidence,  535. 

IMPRISONMENT, 

of  accused,  best  evidence   of,  5*7. 

of  accused,  when  may  be  shown,  77,  78. 

of  witness,  as  impeachment,  302. 

best  evidence  of,  303. 

to  show  habitual  criminal,  577. 

IMPRISONMENT  FOR  DEBT, 

in  bastardy  action,  588. 

IMPROBABILITY  AND  IMPOSSIBILITY, 

as  affecting  belief,  7. 

IMPROPER  FAMILIARITIES, 

evidence  of,  to  prove  adultery,  444,  454. 

INCAPACITY, 

to  commit  crime  because  of  infancy,  27,  28. 

INCEST, 

defined,  456. 

intercourse  must  be  voluntary,  457. 

parties  concerned  are  accomplices,  457. 

evidence  to  prove  the  intercourse,  457. 

other  acts  of,  457. 

kinship  of  the  parties,  458. 

necessary  for  corroboration  of  the  accomplice,  458. 

distinguished  from  rape,  458. 

See  Adultery,  Rape  and  Sexual  Crimes. 

INCRIMINATING  ARTICLES, 

may  be  introduced  in  evidence,  59-61. 

admissible  though  forcibly  taken  from  accused,  60. 

INCRIMINATING  CIRCUMSTANCES, 

must  be  proved  beyond  a  reasonable  doubt,  10. 


INDEX.  64G 

[Reference*  are  to  /'";/es.] 
INCRIMINATING  QUESTIONS. 

to  accused  on  cross-examination,  76-79. 

waiver  of  rights,  by  the  accuse.  I,  303,  304. 

when  witness  may  he  compelled  to  answer,  304,  305. 

INDECENT  LIBERTIES, 

effect  of,  471. 

tNDEPENDENT  CRIMES, 

relevancy  of  evidence  to  prove,  107-114. 

INDICTMENT, 

based  on  incompetent  evidence,  35-36,  39. 

based  on  admissions  of  accused  examined  as  a  witness,  38. 

is  not  evidence,  but  may  be  read  to  jurors,  40. 

material  variance,  41,  42. 

best  evidence  of  pendency  of,  51. 

when  contents  of  may  be  shown  by  parol,  51,  52. 

of  accused,  when  may  be  shown,  77. 

use  of  copies  of  in  extradition,  560. 

when  must  contain  allegation  of  former  conviction,  573. 

INEBRIETY, 

See  Intoxication. 
INFAMOUS  CRIME, 

statutory  regulations  removing  incompetency  caused  by  conviction  of, 

255, 
conviction  of  may  be  shown  to  discredit  witness,  259. 
when  conviction  of  renders  witness  incompetent,  255. 
pardon  restores  competency,  256. 
mode  of  proving  pardon,  257. 

INFANCY, 

presumption  of  incapacity  to  commit  rape  from,  467, 

INFANT, 

presumed  incapable  of  committing  crime,  27. 

when  this  presumption  may  be  rebutted,  28. 
See  Child. 
INFIDELITY, 

as  regulating  the  competency  of  witnesses,  249,  250. 

INFORMER, 

name  of  can  not  be  divulged  by  witness*  214. 


See  Decoys. 


INJURING   ANIMALS, 

when  maliciously  done,  369. 


046  INDEX. 

(References  are  to  Pages."] 
INNOCENCE, 

hypothesis  of,  when  excluded,  9. 

explanation  of  incriminating  facts  consistent  with  innocence,  24. 

right  to  instruction  as  to  presumption  of,  25. 

INSANITY, 

capacity  to  know  right  and  wrong  as  test  of,  192. 

presumption  of  sanity,  193. 

uncontrollable  impulse  and  delusion,  when  amounting  to,  194. 

medical  evidence  of,  195. 

presumption  of  continuance  of,  195. 

burden  of  proof  to  show,  195,  196. 

proof  of,  beyond  reasonable  doubt,  198. 

evidence  of  previous  conduct  and  language  of  accused,  198. 

prior  insanity  may  be  proved,  200. 

evidence  of  demeanor  and  language  of  accused  subsequent  to  crime,  200. 

character  of  crime  as  evidence  of,  201 . 

reputation  not  admissible  as  proof  of,  201. 

evidence  of,  in  family  of  accused,  201. 

non-expert  evidence  to  show,  201. 

facts  forming  basis  of  must  be  stated,  201-203. 

witness  giving  must  have  adequate  knowledge,  203. 

expert  evidence  to  show,  204. 

witness  giving  expert  evidence  of.  must  have  had  some  experience  in 
treating  the  insane,  204. 

opinion  as  to,  may  be  based  on  a  hypothetical  question,  or  on  knowl- 
edge obtained  and  facts  observed  during  medical  examination  of  ac- 
cused, 205. 

examination  of  accused  to  ascertain  sanity,  when  compulsory,  205. 

can  not  be  inquired  into  by  grand  jury,  35. 

simulation,  77. 

INSANITY  OF  WITNESS, 

when  rendering  incompetent,  251. 

mode  of  proving,  252. 

adjournment  may  be  directed  in  case  of,  252. 

INSCRIPTIONS, 

primary  evidence  of,  60. 

INSERTION, 

in  writing,  fraudulent  character  of,  483. 

INSOLVENCY, 

of  accused,  when  relevant,  505-507. 


[NDEX.  64*3 

[Reference*  art  to  Pages.] 
INSPECTION, 

by  jury,  of  persons,  tv>-*>7. 

jury  may  determine  age  from,  *'>.">,   107. 

by  jury  of  instruments  causing  abortion,  414. 

of  child  iii  filiation  suit,  589-691 . 

INSTRUMENTS  IN  WRITING, 

certified  copies  of,  as  evidence,  52. 

INSURANCE, 

evidence  of,  in  arson,  431. 

INTENTION, 

to  commit  crime,  when  absence  of,  will  be  presumed  in  case  of  infant, 

27,  28. 
accused  may  testify  to  his,  75. 
of  person  acting  as  decoy,  85. 
necessity  of  evidence  of,  75. 
province  of  jury  to  determine  in  libel,  334. 
of  accused  to  abduct,  410. 
to  do  bodily  harm,  how  proved,  417. 
evidence  to  show  in  mayhem,  421. 
to  burn  must  be  proved  in  arson,  429. 
present  in  entering,  jury  to  determine,  436. 
of  owner  in  false  pretenses,  500. 
in  carrying  concealed  weapon,  542. 

INTEREST, 

of  accused,  may  be  considered  by  jury,  74. 
of  obligor  may  be  proved,  484. 

INTEREST  AND  BIAS, 

of  witness,  305,  306. 

INTERFERENCE, 

with  witnesses,  511,  512. 

INTERMARRIAGE, 

of  accused  and  female  seduced,  452. 
need  not  be  proved  in  incest,  457. 

INTERMINGLED  CRIMES, 

evidence  of,  when  admissible,  108. 
INTERNATIONAL  COMITY,  554. 
INTERPRETER, 

of  sign  language  of  deaf  mute  witness,  253. 

employment  of,  during  examination  of  witness,  discretionary  at  com- 
mon law,  usually  required  by  statute.  279. 


048  INDEX. 

[Befei-ences  are  to  Pages. ] 
INTERPRETER—  Continued. 

witness  or  juror  may  act  as,  279. 
accuracy  of,  may  be  attacked,  280. 
by-standers  may  assist,  280. 

INTERROGATORIES, 

tiling  of,  in  case  of  contempt,  521. 

INTERSTATE  COMMERCE  COMMISSION, 
compulsory  testimony  before,  73. 

INTERSTATE  EXTRADITION, 

See  Extradition. 

INTIMIDATING  WITNESS,  314. 

INTOXICATING  LIQUORS, 

effect  and  quality  of  may  be  judicially  noticed,  28. 
labels  may  be  proved  orally,  61. 

INTOXICATION, 

no  excuse  for  crime,  206. 

evidence  of,  when  admissible  to  show  physical  condition  at  instant  of 
crime,  206. 

evidence  of,  to  show  specific  intent,  207. 

evidence  of,  to  show  absence  of  guilty  knowledge,  207,  208. 

evidence  of,  to  show  absence  of  premeditated  design,  207,  208. 

to  show  meaning  of  threats  uttered,  208. 

non-expert  witness  may  testify  to,  209. 

evidence  of  conduct  of  accused  on  previous  occasions  while  in  condi- 
tion of,  209. 

confessions  made  under  influence  of,  171. 

of  witness,  admissibility  of,  to  impeach,  292. 

INVALIDITY, 

of  writing  forged  may  be  shown,  494,  495. 

of  official  appointment  can  not  be  shown,  509. 

of  warrant  may  be  shown  in  escape,  524-525. 

IRRESISTIBLE  IMPULSE, 
as  test  of  insanity,  194. 

J 

JEALOUSY, 

as  motive  for  homicide,  384. 

JEOPARDY, 

See  Former  Jeopardy. 


INDEX.  649 

[Beferencet  are  to  Pages."] 

JOINT  DEFENDANTS, 

See  Accomplices. 

JUDGE, 

name  of,  when  judicially  noticed,  28. 

right  of,  to  determine  preliminary  questions  of  < ipetency,  264. 

may  interrogate  witnesses,  265. 

duty  of,  to  silence  abusive  witness,  263. 

remarks  by,  referring  to  credibility  or  weight  of  evidence  are  ground 

for  new  trial,  266. 
province,  333-340. 

power  of,  to  commit  for  contempt,  519-521. 
right  of  to  charge  on  evidence,  274. 

duty  of,  to  instruct  the  jury  on  questions  of  law,  272,  336,  337. 
may  not  read  from  text-writers  in  charging  jury,  338. 

JUDICIAL  NOTICE,  28,  29. 

of  value  of  stolen  money,  358. 
of  public  officers,  514. 
of  times  of  election,  515,  516. 
of  meaning  of  words,  530. 
of  use  of  billiard  tables,  530. 
of  treaties,  568. 

JURISDICTION, 

proof  that  accused  has  fled,  147-149. 
witnesses  out  of,  319-332. 
presumption  of,  524. 
evidence  to  show  lack  of,  525. 

JURISDICTIONAL  LIMITS, 
judicial  notice  of,  28. 

JURORS, 

may  question  witness,  264. 

improper  reception  of  evidence  by,  out  of  court,  280. 

unauthorized  view  by,  280. 

must  testify  as  witnesses  if  they  know  the  facts,  280. 

may  not  read  newspapers,  scientific  or  legal  books  in  jury  room,  280. 

duty  of,  to  reconcile  evidence  with  presumption  of  innocence,  24. 

questions  put  to  witness  by  members  of,  264. 

solely  to  determine  credibility,  268. 

[lower  of,  to  disregard  the  judge's  charge,  •">">•>. 

province  of,  333,  334. 

KEEPING  DISORDERLY  HOUSE, 

defined,  539. 

competency  of  witness  to  prove  character  of,  539. 


650  INDEX. 

[References  arc  to  Pages.~\ 
KEEPING  DISORDERLY  HOUSE—  Continued. 

reputation  of  inmates,  540. 
evidence  of  disorderly  actions,  540. 
character  for  chastity  of  accused,  540. 

KEEPING  GAMBLING  HOUSE, 

proof  of  actual  control  not  essential,  534. 
crime  of,  is  continuance,  534. 

KEROSENE, 

evidence  of  stains  caused  by,  433. 

KINSHIP, 

of  parties  concerned  in  incest,  458. 


LABELS,    . 

on  bottles,  how  proved,  61. 

LACTOMETER, 

evidence  of,  538,  539. 

LANGUAGE. 

evidence  to  show  meaning  of,  424. 

LARCENY, 

variance  in  proof  of,  44. 

evidence  of  good  character  in,  96,  97. 

evidence  of  intoxication  to  disprove  intent  to  commit,  207,  208. 

distinguished  from  embezzlement,  .°>4f>. 

necessity  for  and  mode  of  proving  the  intent,  352. 

accused  must  be  permitted  to  testify  to  explanatory  circumstances  to 

rebut  criminal  intent,  352. 
carrying  away  of  property  stolen  in,  353. 
character  and  proof  of  ownership,  353. 
competency  of  owner  of  stolen  property  as  a  witness,  354. 
non-consent  of  owner  must  be  proved,  354,  355. 
non-consent  of  owner  may  be  proved  circumstantially,  355. 
identification  of  the  property  stolen,  355,  356. 
variance  in  proof  of  the  stolen  property,  356. 
proof  of  genuineness  of  bank-bills,  357. 
recorded  brands  of  stolen  cattle,  357. 
venue  in,  358. 

value  of  stolen  property,  358. 
presumptions  for  the  jury  from  possession  of  stolen  property,  359. 


[NDEX.  051 

[References  are  to  Pages.] 
LARCENY—  Continued. 

possession  must  be  recent  and  exclusive  in  character,  360. 

burden  of  explaining  possession,  361,  362. 

admissibility  of  declarations  by  accused  explanatory  of  possession  of 
stolen  goods,  363. 

evidence  of  foot-prints,  3(14. 

evidence  to  show  the  financial  standing  and  expenditure  of  ac- 
cused, 364. 

evidence  of  other  crimes,  3(35. 

stolen  goods  found  through  inadmissible  confession,  306. 

distinguished  from  false  pretenses,  499. 

LASCIVIOUS  COHABITATION, 

proof  of  circumstances  to  show,  447. 
LAW, 

evidence  to  show  accused  acted  under  mistake  of,  368. 

judicial  notice  of,  568. 

LEADING  QUESTIONS, 

when  in  discretion  of  court  to  allow,  261. 

may  be  put  to  children,  261,  262. 

not  permissible  on  direct  examination,  261. 

new  trial  granted,  because  of,  261. 

may  be  asked  of  unwilling  witness  on  direct  examination,  261,  262. 

LEGISLATURE, 

power  of,  to  punish  for  contempt,  73,  278. 

LEGITIMACY,  PRESUMPTION  OF,  588-591. 

LENIENCY, 

confession  made  under  expectation  of,  161,  162. 

LETTER, 

contents  and  receipt  of,  may  be  shown  orally,  54. 

used  as  decoys,  536,  537. 

as  evidence  against  accused  charged  with  embezzlement,  350. 

as  evidence  against  accused  charged  with  bastardy,  594. 

LETTER  PRESS  COPY, 

as  evidence,  49. 

LIBEL, 

See  Criminal  Libel. 
LIE, 

See  Consciousness  of  Guilt. 

LIFE,  PRESUMPTION  OF, 

when  in  conflict  with  presumption  of  innocence,  26. 


652  INDEX. 

[References  are  to  Pages.] 
LIMITING  EFFECT  OF  EVIDENCE, 
in  proving  other  crimes,  347. 

LOST  RECORDS, 

See  Primary  Evidence. 

LOST  WRITING, 

evidence  to  prove  in  forgery,  490. 

LOTTERIES, 


LUCID  INTERVALS, 
LUNACY, 


See  Gambling. 
See  Insanity. 
See  Insanity. 


M 

MAILING  OBSCENE  LITERATURE,  535,  537. 

MALICE, 

necessity  for  proof  of,  in  injuring  animal,  367. 
presumption  of  in  homicide,  380. 

MALICIOUS  MISCHIEF, 

at  common  law  and  by  statute,  367. 

malicious  intent  must  be  proved,  367. 

intent  may  be  inferred  from  acts  or  contemporaneous  declarations  of 

accused,  368. 
evidence  of  value  and  ownership  of  property  destroyed,  368. 
good  faith  of  accused,  368. 
injuring  or  killing  animals,  369. 
in  cutting  or  destroying  grain,  trees  or  fruit,  370. 

MARRIAGE, 

annullment  of,  may  be  shown  in  bigamy,  459. 
necessity  for  proof  of,  in  adultery,  445. 
strict  proof  of,  required,  446,  462. 
certificate  of,  prima  facie  evidence,  446,  462. 
eye-witness  may  prove  ceremony  of,  446. 
of  accused,  provable  by  his  admissions,  446. 
presumption  of  continuance  of,  446. 
of  parties  to  adultery  not  presumed,  446. 
evidence  of  cohabitation  and  reputation,  462. 
admissions  of  accused  to  prove,  463. 
certificates  and  copies  of  records  to  prove,  464. 
when  solemnized  in  foreign  country,  464. 


IN!)  E  X . 

[References  are  to  Pagea.^ 
MATERIALITY, 

of  evidence,  necessity  lor  in  perjury,  526. 
opinion  evidence  not  admissible  to  prove,  528. 
of  newly-discovered  evidence,  583. 

M  IYHEM,  359. 

MEDICAL  WITNESSES, 

See  Expert  Witnesses. 

MEMORANDA  TO  REFRESH  MEMORY, 
when  copies  may  be  used  as,  269. 
when  evidence,  267. 
must  be  contemporaneous,  268. 

MEMORY, 

of  witness,  5. 

of  witness,  cross-examination  to  test,  271-274. 

MENTAL  CAPACITY, 

of  witness,  when  relevant,  251-254. 

may  always  be  considered  by  the  jury,  252. 

MENTAL  CONDITION, 

as  determining  the  admission  of  declarations,  142. 
of  one  making  dying  declaration,  141. 
of  person  making  confession,  171. 
of  intoxicated  person,  171,  206-209. 

MENTAL  FEELINGS, 

oral  expressions  of,  116-126. 

MILK, 

adulteration  of,  537,  538. 

MINOR, 

abduction  of,  404-408. 

MISDEMEANORS, 

doctrine  of  reasonable  doubt  applicable  to,  trials  of,  578. 
conviction  of,  may  be  shown  to  impeach,  259. 

MISTAKE  OF  LAW, 

accused  may  prove  he  acted  under,  368. 

MONEY, 

desire  for,  as  motive  for  homicide,  383,  384. 
variance  in  proof  of  stolen,  357. 
possession  of,  presumption  from,  359-363. 
proof  of  passing,  not  required  in  bribery,  5K 


654  INDEX. 

[Beferences  are  to  Pages.] 
MORAL  CERTAINTY, 

See  Reasonable  Doubt. 

MORPHINE  HABIT, 

relevancy  of,  as  evidence  to  show  mental  condition  of  accused,  210. 

MOTIVE, 

of  witness  to  misrepresent,  7. 

crimes  united  in,  may  he  proved,  108-116. 

prompting  declarations  which  are  part  of  the  res  gestae,  116. 

prompting  dying  declarations,  127. 

relevancy  of  evidence  to  show,  for  homicide,  383-385. 

MUNICIPAL  CORPORATIONS, 

powers  of,  may  be  judicially  noticed,  28. 

MURDER, 

See,  also,  Homicide. 

MUTES, 

See  Deaf  Mutes  as  Witnesses. 

N 

NAME, 

allegation  and  proof  of,  43,  44, 

variance  in  proof  of,  in  forgery,  484,  485. 

when  fictitious. 

See  Fictitious  Persons. 

NARCOTIC, 

dying  declarations  given  under  influence  of,  140,  141. 

NARRATIVE  DECLARATIONS, 

not  receivable  as  part  of  the  res  gestae,  119-122. 

NATURAL  DISPOSITION, 

of  accused,  not  competent  in  evidence^  105. 

NEARNESS  OF  DEATH, 

as  furnishing  sanction  for  dying  declarations,  127-130. 
character  of  wounds  tending  to  show,  132. 

NECESSITY, 

for  producing  abortion,  411. 

NEGATIVE  FACTS, 

burden  of  proof  to  show,  33,  34. 


tNDEX.  Lio  j 

[References  are  to  Fages.] 
NEGATIVE  TESTIMONY, 

to  prove  good  character,  102. 

NEGLIGENCE, 

in  permitting  escape,  522-52-4 . 

NEWLY-DISCOVERED  EVIDENCE, 

Dew  trial,  when  granted  on,  578,  579. 
due  diligence  must  be  shown,  579. 
must  appear  from  the  affidavits,  581. 
credibility  of,  582. 
materiality  and  relevancy  of,  583. 
when  impeaching  only,  583. 
when  cumulative  only,  584,  585. 

NEWSPAPER, 

may  be  used  to  refresh  memory,  267,  268. 

NEW  TRIAL, 

when  granted  for  permitting  comment  on  failure  of  accused  to  testify,  82. 

NIGHT-TIME, 

defined,  433. 

evidence  to  show  breaking  in  occurred  during,  433. 

NOLLE  PROSEQUI, 

power  of  court  to  enter,  in  case  of  accomplice,  88. 

NON-ACCESS, 

can  not  be  proved  by  evidence  of  either  party  to  marriage,  592-594. 
evidence  of  absence  to  show,  593. 

NON-CONSENT, 

of  owner  of  goods  stolen,  must  be  proved,  354. 
owner  or  agent  may  testify  to,  355. 
may  be  proved  by  circumstantial  evidence,  355,  435. 
burden  of  proof  to  show,  70. 

burden  of  proof  and  competency  of  witness  in  case  of  abduction  of 
minor,  406. 

NON-EXISTENCE, 

of  fictitious  person,  491,  492. 

NON-EXPERT, 

may  testify  to  handwriting,  493,  494. 

NON-RESIDENCE, 

when  conferring  privilege  from  arrest  on  witness,  316. 
in  extradition,  558. 


056  INDEX. 

[References  are  to  Pages.'] 
NOTICE, 

judicial,  21. 

NOTICE  TO  PRODUCE, 

when  applicable  in  criminal  proceedings,  52. 
instrument  alleged  to  be  forged  or  stolen,  52. 

NOTORIOUS  FACTS, 

judicial  notice  of,  28. 

NUMBER  OF  WITNESSES, 
to  character,  106. 


o 

OATH, 

confessions  made  under,  before  and  after  accused  is  indicted,  165,  166. 

definition  and  formal  requirements  of,  247,  248. 

when  taken  by  a  person  not  an  adherent  of  Christianity,  248. 

children  not  understanding  nature  of,  are  incompetent,  253,  254. 

of  interpreter,  279,  280. 

insane  witness  must  understand,  251. 

OBLIGOR, 

may  testify  to  forgery  of  instrument  by  which  he  is  bound,  483. 

interest  of,  may  be  proved,  484. 

may  be  dispensed  with  as  witness,  484. 

OBSCENE  LITERATURE, 

statute  against  mailing,  535. 

character  of,  for  jury,  535. 

decoy  letters,  536. 

oral  evidence  to  show  meaning  of  language,  536. 

OBSTRUCTING  JUSTICE, 

necessity  for  proof  of  official  character,  510. 

officer  may  testify  to  character,  510. 

invalidity  of  appointment  can  not  be  shown,  510. 

intention  to  obstruct  may  be  inferred  from  language,  510. 

presumption  and  burden  of  showing  validity  of  warrant,  511. 

preventing  attendance  of  witnesses,  511. 

OFFER, 

of  accused  to  surrender,  147,  525. 

by  accused  of  seduction  to  marry  prosecutrix,  452,  453. 


INDEX.  65' 

[Reference*  are  to  Pages.] 
OFFICER, 

resistance  to,  147,  148. 

confession  made  to,  163. 

furnishing  liquor  to  accused  by,  effect  upon  confession,  171. 

may  carry  concealed  weapon,  545,  546. 

resisting  an,  509-51 1 . 

OFFICIAL  CHARACTER, 

provable  by  oral  evidence,  57,  58. 
necessity  to  show,  509,  511. 

OFFICIAL  COMMUNICATIONS, 
when  privileged,  213-215. 

OMISSION  OF  EVIDENCE, 

supplying  evidence  of  witness  kept  away,  321,  322. 

OPINION  EVIDENCE, 

not  admissible  when  contained  in  dying  declarations,  136. 

inadmissible  to  show  character,  101,  102. 

of  identity,  68. 

to  show  intoxication,  209. 

as  to  burning,  432. 

inadmissible  to  show  cause  of  fire,  434. 

of  age,  407. 

in  burglary,  as  to  means  of  entrance,  434. 

as  to  character  of  foot-prints,  436. 

OPINION  EVIDENCE  OF  INSANITY, 

by  non-expert  witness: 

non-expert  must  have  adequate  knowledge  of  facts,  201 . 

must  state  facts  with  his  opinion,  202. 

opinion  of,  can  not  be  based  upon  hypothetical  question,  202. 

weight  of  evidence  of,  202. 

competency  of,  is  for  court  to  determine,  203. 
by  medical  expert  witness : 

his  opinion  must  be  based  on  hypothetical  question,  204. 

when  his  opinion  may  be  based  on  evidence  given  in  the  case,  201. 

general  qualifications  of,  204. 

must  have  had  some  experience  in  treating  the  insane,  205. 

facts  and  symptoms  observed   in   physical  examination   may  he  de- 
scribed,  205. 

OPPORTUNITY, 

as  evidence  of  sexual  intercourse,  444,  448,  457. 
42— Cr.  Ev. 


658  INDEX. 

[References  are  to  Pages.'] 
ORAL  EVIDENCE, 

testimony  of  deaf  mute  by  signs  is,  253. 

to  prove  official  character,  348,  510. 

to  prove  contract  of  employment  in  embezzlement,  348. 

to  prove  ownership  of  property,  368. 

to  prove  forged  writing,  490,  491. 

of  corporate  existence,  492,  493. 

to  show  use  of  forged  writing,  494,  495. 

to  supply  omitted  details  in  consular  certificate,  505. 

to  contradict  official  return,  517,  518. 

to  show  meaning  of  language  used,  540. 

to  prove  identity  of  accused  alleged  to  be  habitual  criminal,  577. 

ORDER  OF  PROOF, 

each  side  to  exhaust  its  case,  343. 
evidence  in  chief  received  during  rebuttal,  344. 

in  case  of  plea  of  not  guilty  where  accused  is  alleged  to  be  habitual 
criminal,  574. 

OTHER  CRIMES,  EVIDENCE  OF, 

not  admissible  where  crimes  are  independent,  107. 

receivable  where  crimes  are  connected,  108,  382. 

where  parts  of  a  general  scheme,  108,  109. 

connection  must  be  clearly  shown,  110. 

admissible  to  show  intention  or  guilty  knowledge,  110. 

in  homicide  by  poison,  111. 

when  united  in  motive,  112. 

when  one  crime  is  committed  to  conceal  another,  113,  382. 

admissible  to  show  identity  of  means  or  person,  114. 

admissibility  in  cases  of  adultery,  incest,  etc.,  115,  457. 

admissibility  in  embezzlement,  347. 

under  indictment  for  larceny,  365. 

in  homicide,  111,  382. 

in  abortion,  410. 

to  prove  intent  of  assault,  418. 

in  arson,  111,  431,432. 

in  burglary,  439. 

in  forgery  to  show  guilty  knowledge,  111,  487,  496,  497. 

fact  of  acquittal  does  not  exclude,  486,  487. 

where  accused  is  alleged  to  be  habitual  criminal,  574. 

not  usually  relevant  in  rape,  475. 

to  show  intent  in  bribery,  514. 

OUTCRIES, 

of  woman  on  whom  rape  is  made,  478. 

OWN  DWELLING, 

when  burning  of,  is  arson,  429. 


I  mux.  (')'>'.> 

[Beferencti  (ire  in  Pages. ~\ 
OWNER, 

evidence  to  prove  consent  of,  to  entrance, 
intention  of,  as  regards  title  in  false  pretenses,  500. 

OWNERSHIP, 

lit'  property  injured,  368. 
iii  embezzlement,  348. 
of  building  burned,  429. 

OWNERSHIP  OF  STOLEN  GOODS, 

variance  in,  354. 

best  evidence  of,  required,  354. 

by  corporation,  354. 

proving  by  recorded  brands,  357. 

OWN  WITNESS, 

can  not  be  impeacbed  by  party  calling,  288. 

P 
PAIN, 

utterances  descriptive  of,  411,  478,  598. 

PAINTINGS, 

as  evidence,  64. 

accuracy  must  be  shown,  64,  65. 

PARDON, 

removes  incompetency  to  testify  caused  by  conviction  of  infamous 

crime,  256. 
must  be  full  and  unconditional,  256. 

courts  will  judicially  notice  proclamation  of  general  amnesty,  257. 
primary  evidence  of,  is  required,  257. 
parol  evidence  to  identify  person  named  in,  257. 
as  excluding  proof  of  former  conviction,  572,  573. 

PARENT, 

may  testify  to  age  of  child,  50. 

PAROL  EVIDENCE, 

to  show  contents  of  warrant  or  indictment,  51,  52. 

to  show  contents  of  letters  received  by  prisoner  in  jail,  53,  54. 

to  show  imprisonment  of  accused.  •">  I. 

of  confessions  taken  at  the  preliminary  examination,  1(17. 

PARTICULAR  FACTS, 

cross-examination  upon,  of  witness  testifying  to  good  character,  103. 

PASSING  COUNTERFEIT  MONEY,  496-499. 


€)G0  INDEX. 

[Reference*  are  to  Pages."] 
PASSING  WORTHLESS  CHECK, 

false  pretenses  inferred  from,  507. 

PATERNITY, 

inspection  to  determine,  589-591. 
burden  of  proof,  588. 

PAUPER  DEFENDANT, 

service  of  process  for,  308. 
PEACEABLENESS, 

character  of  accused  for,  96,  390. 

PECULATION, 

competency  of  evidence  proving  another  offense  under  charge  of,  347. 

PECUNIARY  CONDITION, 

of  person  accused  of  forgery  of  receipt,  496. 
false  representations  of,  505. 
evidence  to  show,  506,  507. 

PENETRATION, 

evidence  of  physician  to  show,  471,  472. 

character  of  proof,  471. 

circumstantial  evidence  to  show,  472. 

in  cases  of  child,  472. 

must  be  proved  beyond  reasonable  doubt,  473. 

PERJURY^, 

definition  and  intent  to  swear  falsely,  525,  526. 

materiality  of  the  evidence,  526. 

number  of  witnesses  and  corroboration  required,  527. 

falsity  of  the  testimony,  528,  529. 

conviction  of,  disqualifies  witness,  258. 

PERSON, 

variance  in  names  of,  43. 
exhibiting,  to  show  identity,  65-70. 

PERSONAL  IDENTITY, 

evidence  of,  65-67. 

PERSONAL  PROPERTY, 

primary  evidence  of  its  physical  condition,  58. 

evidence  to  identify,  59. 

weapons  in  evidence,  376. 

desire  to  obtain,  as  motive  for  homicide,  384. 

articles  of,  in  evidence,  538. 


INDEX. 


66J 


[  Referenct  s  are  to  Paget."] 
PERS0N8  IN  AUTHORITY, 

when  confessions  made  to,  are  presumed  involuntary,  17:5. 

PHOTOGRAPHS, 

as  primary  evidence,  61. 

received  to  identify  premises,  persons  and  dead  bodies,  62. 

as  evidence  of  public  records,  62. 

as  evidence  of  disputed  writings,  62. 

accuracy  and  relevancy  of,  63. 

change  in  scene  prior  to  taking,  63. 

stationing  men  about  while  taking,  63. 

by  amateur  is  admissible,  63. 

familiarity  with  locality,  63. 

admissibility  of,  to  identify  deceased  person,  and  show  character  of 

wounds,  372. 
to  prove  language  of  faded  writing,  490. 

PHYSICAL  CONDITION, 

primary  evidence  of,  58. 

of  person,  evidence  to  show,  65,  66. 

of  the  accused,  66, 

inspection  by  jury,  67. 

of  deceased  in  homicide,  372. 

of  woman  on  whom  abortion  was  committed,  412. 

evidence  of ,  to  rebut  presumption,  472. 

of  prosecutrix  in  rape,  medical  evidence  to  show,  472-474. 

of  accused,  in  rape,  476. 

PHYSICAL  EXAMINATION, 

may  be  dispensed  with  in  rape,  471. 
evidence  ascertained  by,  472-474. 

PHYSICAL  INCAPACITY  OF  ACCUSED, 

when  it  may  be  shown,  206. 

PHYSICAL  INJURIES, 

photographs  to  show,  63,  372. 

PHYSICIANS, 

their  competency  as  witnesses,  372-374. 
accused  of  abortion,  privileged  communications  to,  414. 
may  testify  to  age,  strength,  physical  and  mental  condition,  of  prosecu- 
trix in  rape,  471—474. 
testimony  of,  as  to  penetration,  471. 
can  not  testify  as  to  consent  in  rape,  472. 


C62  INDEX. 

[References  an'  tt>  Pages."] 
PHYSICIAN,  PRIVILEGED  COMMUNICATIONS  TO, 

dying  declarations  not  regarded  as,  228. 

made  in  contemplation  of  crime,  228. 

when  made  during  examination  to  detect  or  ascertain  insanity  of  ac- 
cused, 228. 

not  recognized  at  common  law,  224. 

statutory  regulation  of,  225. 

proof  of  express  hiring  not  required  to  establish  relation,  225. 

when  communication  must  have  been  necessary  to  enable  physician  to 
prescribe,  226. 

waiver  of  privilege  in  civil  cases,  227. 

waiver  in  prosecution  for  rape,  227. 

death  of  the  patient  as  affecting  the  character  of,  227. 

PLACE, 

allegation  and  proof,  variance,  43. 
PLEA  OF  GUILTY, 

when  conclusive,  177. 

may  be  withdrawn  before  judgment,  177. 

discretion  of  court  to  refuse  to  permit  withdrawal  of,  177. 

entered  through  mistake  or  ignorance,  178. 

POISONING, 

evidence  of  similar  crimes,  108. 

dying  declarations  in  death  by,  135. 

evidence  of,  afforded  by  autopsy,  317,  374,  377. 

essential  facts  may  be  sustained  by  circumstantial  evidence,  378. 

qualifications  of  expert  in,  378. 

to  what  facts  expert  may  testify  in,  378. 

inference  of  intent,  379. 

death  of  other  persons,  379. 

possession  of  poison  by  accused,  379. 

POLICE  OFFICIAL, 

best  evidence  of  his  appointment  and  authority,  57 
when  communications  to,  are  privileged,  213. 
admissibility  of,  confession  made  to,  156. 
unconscious  influence  of,  on  confession,  186. 
may  testify  in  extradition,  565. 

POPULATION, 

judicial  notice  of,  29. 
POSSESSION, 

of  weapons,  by  accused,  375. 
of  instruments  to  cause  abortion,  413. 
of  burglar's  tools,  evidence  to  show,  438. 
inference  of  guilty  knowledge  from,  488. 
of  forged  writings  by  accomplice,  489. 


INDEX.  663 

[/.'</<  rena  a  are  to  J 
POSSESSION  OF  COUNTERFEIT  NOTES, 

guilty  knowledge  may  !»•  interred  from,  490. 

accused  may  explain,  497. 

must.  be  exclusive  and  personal,  497. 

POSSESSION  OF  STOLEN  GOODS, 

may  always  be  proved,  359. 
inferences  from,  359. 
must  be  recent  in  time,  360. 

weight  of,  as  evidence  as  affected  by  intervening  time,  300. 

as  affected  by  portable  character  of  money  or  goods  stolen,  361. 

must  be  personal  and  exclusive,  861 

not  sufficient  if  constructive  only,  361. 

accused  has  burden  of  explaining,  362. 

presumption  in  case  of  failure  to  explain,  363. 

when  explanation  will  be  accepted  as  satisfactory,  363. 

declarations  accompanying,  may  be  proved  as  a  part  of  res  gestce,  363. 

revealed  by  an  inadmissible  confession,  366. 

as  supplying  motive  for  homicide,  385. 

presumption  from  in  burglary,  440. 

in  burglary,  must  be  recent,  personal,  and  unexplained,  441. 

POSTPONEMENT, 

See  Continuance. 
POVERTY, 

of  accused,  relevancy  of,  365,  505-507. 

PRECAUTION, 

to  prevent  fire,  relevancy  of,  431. 

PREGNANCY, 

in  abortion,  defendant's  knowledge  of,  need  not  be  proved.  413. 
knowledge  of,  to  prove  intent,  413. 

PREJUDICE, 

against  circumstantial  evidence  may  disqualify  juror,  7. 

PRELIMINARY  EXAMINATION, 

best  evidence  of  proceedings  at,  51. 

evidence  taken  at,  how  proved,  164. 

testimony  of  witness  at,  admissible  at  subsequent  trial,  319. 

testimony  of  accused  at,  166. 

extradition  proceedings  in  nature  of,  556. 

evidence  of  in  bastardy,  600. 

PREMEDITATION, 

evidence  of  intoxication  to  show  absence  of,  207. 
evidence  of  hostility  to  show,  396. 
proof  of,  not  necessary  in  mayhem,  421. 


£64  INDEX. 

[References  are  to  Pages.] 
PREMISES, 

taking  the  view  of,  282-284. 

condition  of,  where  burglary  committed,  434. 

PREPARATION, 

for  crime,  declarations  made  in,  when  received,  123. 

to  commit  arson,  432. 

to  commit  burglary,  434. 

for  marriage,  may  be  shown  in  seduction,  450. 

PREPONDERANCE  OF  EVIDENCE, 

not  sufficient  for  conviction  in  criminal  trial,  12. 
PRESENCE  OF  ACCUSED, 

while  taking  the  view,  284. 

during  examination  of  witnesses,  284. 

during  argument  as  to  competency,  285. 

record  must  show,  285. 

may  be  dispensed  with  while  stenographer  reads  minutes  of  testimony, 

285 
near  scene  of  burglary,  439. 

PRESENCE  OF  WITNESSES, 

See  Attendance  of  Witnesses  and  Separation  of  Witnesses. 

PRESUMPTION, 

of  good  character,  96. 

of  incapacity  to  commit  crime  because  of  infancy,  27. 

as  to  accuracy  of  photograph,  63. 

of  voluntary  character  of  confession,  162,  172. 

of  continuance  of  insanity,  195,  et  seq. 

of  sanity,  193. 

of  sanity,  when  equivalent  to  proof,  196. 

from  possession  of  stolen  goods,  359,  440. 

of  malice  in  homicide,  380. 

of  chastity  of  female  abducted,  406. 

of  death  from  unexplained  absence,  459. 

of  continuance  of  marriage,  446. 

of  continuance,  26,  455. 

of  valid  marriage,  461. 

of  incapacity  to  commit  rape,  466. 

of  forgery  from  possession  of  forged  writings,  489. 

of  jurisdiction,  524. 

that  owner  knows  what  house  is  used  for,  535. 

of  validity  of  warrant,  524,  525. 

PRESUMPTION  OF  CHASTITY  OF  FEMALE, 
in  seduction,  26. 
when  opposed  by  presumption  of  innocence,  26,  27. 


INDKX.  C65 

[Beferencea  are  t<>  Pages. "] 
PRESUMPTION  OF  INNOCENCE3 
always  applicable,  24. 

can  only  be  overcome  by  evidence  of  guilt,  beyond  reasonable  doubt,  25. 
accompanies  accused  until  verdict,  26. 
when  conflicting  with  other  presumptions,  26. 
distinguished  from  burden  of  proof,  30. 
in  conflict  with  presumption  of  chastity,  455. 

PRESUMPTION  OF  LEGITIMACY, 

when  conclusive,  591. 

rebuttable  by  proving  non-access,  592,  593. 

PRESUMPTION  OF  LIFE, 

when  existing,  26. 

when  conflicting  with  presumption  of  innocence,  26. 

PREVIOUS  IMPRISONMENT  OF  WITNESS,  302. 

PRIEST, 

how  sending  for  may  indicate  sense  of  approaching  death,  131. 
privileged  communications  to,  224. 

See  Clergyman. 

PRIMA  FACIE  CASE, 

when  state  must  make  out,  30-33. 

PRIMARY  EVIDENCE, 

defined,  48. 

of  age,  49. 

of  handwriting,  50. 

of  indictment  pending  or  acquittal,  51. 

of  proceedings  at  coroner's  inquest  or  preliminary  examination,  51. 

statutes  regulating,  52. 

when  papers  can  not  be  found,  53. 

of  warrant,  53. 

of  indictment,  53. 

of  offense  named  in  warrant,  53. 

of  instrument  acknowledged,  53. 

notice  to  produce,  52. 

of  forged  writing,  52. 

of  writings  whose  existence  or  contents  are  in  issue.  52,  •">:;.  490. 

of  contradictory  writings  and  writings  which  can  not  be  found,  52,  53, 

490. 
of  collateral  facts,  54. 
of  lease,  54. 

of  conviction  of  crime,  54. 
of  prior  arrest,  54. 
of  sending  telegram  or  letter,  54. 


G66  INDEX. 

[References  are  to  Pages.} 
PRIMARY  EVIDENCE—  Continued. 

of  the  existence  of  the  marriage  relation,  55,  445,  446. 

of  writings  customarily  destroyed,  55. 

of  the  general  result  of  examination  of  books  and  papers,  56. 

of  insolvency,  56. 

of  balance  due,  56. 

of  result  of  examination  of  public  record,  56. 

of  records,  57. 

by  certified  copies,  57. 

of  official  appointment,  57. 

of  physical  condition  of  personal  property  58. 

of  identity,  58. 

of  inscriptions  on  bulky  articles,  60. 

of  labels,  tags,  etc.,  59. 

photographs  as,  59-62,  63. 

drawings  and  sketches  as,  64. 

of  identity  of  persons  and  property,  65-69. 

certified  copies  as,  52. 

of  age,  49. 

of  ownership,  54. 

of  lease,  54. 

of  imprisonment,  54. 

of  public  appointments  and  records,  57. 

of  blood  stains  on  clothing,  58. 

of  character  of  intoxicating  liquors,  58. 

of  identity  of  personal  property,  58. 

of  signboards,  monuments,  boundaries,  etc.,  61. 

of  dying  declarations,  141-143. 

of  judicial  determination  that  witness  is  a  lunatic,  252. 

of  pardon  of  witness,  256. 

of  former  trial  under  plea  of  former  jeopardy,  244. 

of  marriage  ceremony,  461. 

of  marriage,  445-447. 

of  corporate  existence,  492,  493. 

of  ownership  of  stolen  goods,  353. 

PRIOR  CONVICTION, 

of  accused,  when  may  be  shown,  76. 

issue  and  mode  of  proof  in  case  of  habitual  criminality,  574,  575. 

PRIOR  INCONSISTENT  STATEMENTS, 
may  be  proven,  293. 

PRISONER, 

See  Accused. 


i n  i  >  i :  x .  CG7 

[  Reft  r  ■'•'■>■  are  to  Vage$."\ 
PRIVILEGED  COMMUNICATIONS, 

protected  on  cross-examination  of  accased,  78. 

confessions  contained  in,  170. 

the  doctrines  of ,  generally  considered,  211,  212. 

between  executive  officials,  213. 

between  attorney  and  client,  215,  -"J". 

between  priest  and  penitent,  224. 

between  physician  and  patient.  224  227. 

as  regards  telegrams,  228. 

between  husband  and  wife,  230-  237. 

as  relating  to  the  evidence  of  judicial  officers,  237. 

grand  jurors,  238-240. 

traverse  jurors,  241,  242. 

PROBABLE  CAUSE, 
of  fire,  432. 

PRODUCTION  OF  WRITINGS, 
by  subpoena  duces  tecum,  310. 
necessary  in  trial  for  forgery,  490,  491. 

PROMISE  OF  MARRIAGE, 

must  be  proved  in  seduction,  449. 

may  be  inferred  from  circumstances,  449. 

need  not  be  in  express  language,  44!>. 

prior  conduct  of  the  parties  to  show,  449,  450. 

subsequent  conduct  of  the  parties  to  show,  450. 

prosecutrix  in  seduction  may  testify  to,  450. 

corroboration  as  regards,  450. 

in  bastardy  proceedings,  594. 

PROOF  OF  HANDWRITING, 

by  subscribing  witnesses,  49. 

See  Burden  of  Proof. 
PROPERTY, 

intent  to  convert,  in  embezzlement,  346,  347. 
declarations  of  accused  explaining  possession  of,  361-364. 

PROSECUTION, 

must  sustain  the  burden  of  proof,  31. 

PROSECUTRIX, 

her  examination,  credibility  and  corroboration  in  seduction,  4">l-452. 

PROSTITUTION, 

of  female  witness  may  be  shown  to  impeach,  'W2. 

abduction  for  purpose  of,  408. 

evidence  to  show  use  of  house  for,  539,  540. 


668  INDEX. 

[References  are  to  Pages.] 
PROVINCE  OF  JUDGE  AND  JURY,  333-344. 

PUBLICATION, 
in  libel,  423. 

PUBLICITY, 

as  an  element  of  gambling,  532. 

PUBLIC  OFFICERS, 

best  evidence  of  appointment  of,  57,  58. 

PUBLIC  RECORDS, 

primary  evidence  of,  57. 

primary  evidence  of  fact  not  found  in,  57. 

as  evidence  against  the  accused  charged  with  embezzlement,  350. 

as  proof  in  extradition,  563,  et  seq. 

PUBLIC  STREETS  AND  SQUARES, 

judicial  notice  of,  28,  46. 

PUNISHMENT, 

increasing  because  of  repetition  of  crime,  569-576. 

PURPOSE, 

of  forged  writing  may  be  shown  by  oral  evidence,  494,  495. 

Q 

QUESTION, 

confession  made  in  answer  to,  174. 

R 

RACE, 

evidence  of,  from  inspection,  65,  66. 

EAPE, 

denned,  465. 

presumption  of  non-consent  in  case  of  infants,  466. 

committed  by  infants,  467. 

evidence  to  rebut  the  presumption  against  capacity  to  commit,  467,  468. 

evidence  of  complaint  by  victim,  468. 

details  of  complaint  in,  may  be  proved  to  impeach  or  corroborate, 

468,  469. 
delay  in  making  complaint,  470,  471. 
testimony  of  physician,  471. 

evidence  of  the  physical  condition  of  prosecutrix,  472. 
competency  and  credibility  of  prosecutrix  as  a  witness,  473. 
infancy  of  prosecutrix,  474. 


index.  669 

[References  are  to  Pages  ] 

RA.PE— Continued. 

evidence  to  show  relations  of  the  parties,  17"). 

direct  and  ci rciimst an t  i:il  evidence  to  prove  penetration,  476. 

force  or  fraud  must  be  shown,  177. 

failure  of  female  to  make  outcry,  177,  -17s. 

reputation  of  prosecutrix  in,  tor  chastity,  479,  480. 

READING  INDICTMENT, 

effect  of,  40. 

RE  \l.  EVIDENCE, 

to  show  identity  of  personal  property,  58. 
defined,  65. 

REASONABLE  DOUBT, 

guilt  must  be  proved  beyond,  9. 

difficulty  of  defining,  14-16. 

not  applicable  in  civil  cases,  12. 

distinction  as  regards  weight  of  evidence,  12. 

doctrine  of,  not  applicable  in  civil  cases,  13,  14. 

distinguished  from  demonstration,  15. 

equivalent  to  "  moral  certainty,"  15. 

attempted  definitions,  L6-17. 

precautions  to  be  employed  in  defining,  19. 

doctrine  of,  applicable  to  misdemeanors,  20. 

conviction  beyond,  of  every  material  fact  not  required,  21. 

when  entertained  by  one  juror,  21. 

evidence  of  good  character  not  confined  to  cases  of,  100. 

evidence  of  good  character  may  create,  101. 

doctrine  of  not  invoked  in  bastardy,  588. 

alibi  need  not  be  proved  beyond,  187. 

insanity  not  required  to  be  proved  beyond,  198. 

not  applicable,  in  extradition,  556. 

REASONABLE  HYPOTHESIS, 

must  he  excluded  when  verdict  of  guilty  is  based  on  circumstantial  evi- 
dence, 9,  10. 

RECALLING  WITNESS, 

discretion  of  court  to  permit,  L'7i;. 
wholly  in  discretion  of  court,  ii7*">. 
after  re-direct  and  re-cross-examination,  276. 

RECEIPT, 

as  evidence  against  accused  when  charged  with  embezzlement,  351. 


G70  INDEX. 

[References  are  to  Pages.] 

RECEIVING  EVIDENCE  OUT  OF  COURT, 

generally  improper,  280. 

experiments  of  jurors,  280. 

from  private  view  of  premises  or  scene  of  crime,  280,  282,  284. 

from  witnesses  not  sworn  and  from  writings  not  in  evidence,  281. 

from  criminating  articles  in  jury  room,  281. 

RECOGNIZANCE, 

to  secure  the  attendance  of  witness,  312. 

RECORD, 

copy  of,  to  prove  conviction,  243. 

received  to  prove  former  jeopardy,  244. 

as  conclusive  evidence  of  direct  contempt,  519. 

proof  of,  in  interstate  extradition,  561-564. 

See  Public  Records. 
RECORDED  DEED, 

to  prove  ownership,  400. 

RECOVERY, 

when  hope  of  excludes  dying  declaration,  129-132. 

RE-DIRECT  EXAMINATION, 

must  not  be  suggestive,  275. 

irrelevant  evidence  received  on  cross-examination,  its  effect  on,  276. 
explaining  contradictory  statements  and  motives  on,  275. 
new  matter,  not  touched  on  in  cross-examining,  can  not  be  brought  in, 
274. 

REFERENCE  TO  THIRD  PERSON  FOR  INFORMATION,  504-507. 

REFRESHING  MEMORY, 

by  consulting  memorandum,  267. 
character  of  writing  used  for,  268. 

REFRESHMENTS, 
as  a  wager,  477. 

REFUSAL, 

proof  of,  in  embezzlement,  347. 

REFUSAL  TO  TESTIFY, 

when  a  contempt  of  court,  278. 
how  and  by  whom  punishable,  278. 
before  justice  of  the  peace,  279. 

RELATIONSHIP, 

as  impeachment,  305. 


INDEX.  671 

[References  are  t'>  Pages.] 
RELIGIOUS  BELIEF, 

as  sanction  for  dying  declarations,  128. 
witness  may  be  interrogated  as  to  bis,  250. 
statutt  s  regulating  the  Bubject,  260,  251. 

REMARKS  OF  COURT, 

if  made  daring  examination  of  witness  may  furnish  grounds  for  new 
trial,  264. 

REMOTENESS, 

of  evidence  to  character,  104. 

of  possession  of  stolen  property,  359. 

of  autopsy  from  death,  :>74. 

REPETITION  OF  CRIME, 

statute  to  prevent,  5H9-576. 

REPLIES, 

of  witness  must  be  responsive,  266. 

REPUTATION, 

not  admissible  to  prove  insanity,  199. 

evidence  of,  when  bad,  to  impeach  witness,  290-293. 

must  come  from  acquaintances  of  the  witness,  291. 

must  not  be  too  remote,  291. 

for  truthfulness  of  witness  who  has  been  impeached,  299. 

for  peace  and  quietness,  of  accused,  385-388. 

of  accused,  390. 

as  evidence  of  marriage,  461. 

of  prosecuting  witness  in  bastardy,  596. 

of  prosecutrix  in  rape,  for  chastity,  479,480. 

of  house  as  gambling  house,  534. 

of  person  as  common  gambler,  534. 

of  inmates  of  house  of  ill  fame,  540. 

See  Character  of  Accused. 

REQUISITION  PAPERS, 

form  and  character  of,  in  interstate  extradition,  560. 
RES  GEST.E, 

scope  and  limit  of  facts  forming  part  of,  116. 

illustrated  in  circumstantial  evidence,  116. 

instinctive  declarations  and  utterances  included  under,  117. 

declarations  must  approximate  in  time,  place  and  motive,  118. 

circumstances  which  may  exclude  declarations,  118. 

declarations  received  to  show  malice  and  premeditation,  118. 

declarations  must  illustrate  main  transaction,  118. 

declarations  must  be  contemporaneous  with  main  transaction,  119,  120. 


672  INDEX. 

[References  are  to  Pages.] 
RES  GESTAE—  Continued. 

length  of  period  intervening,  121. 

narrative  declarations  not  included  under,  120. 

interval  for  consideration,  121. 

spontaneous  character  of  declarations  required,  121. 

declarations  in  homicide,  121. 

mental  condition  of  declarant,  122. 

admissibility  for  the  accused,  123. 

whole  declaration  must  be  received,  123. 

declarations  accompanying  acts  of  preparation,  124. 

declaration  must  refer  to  some  relevant  act,  124. 

utterances  of  by-standers  and  third  persons,  125. 

declarations  which  are  part  of,  distinguished  from  dying  declarations, 

134,  135. 
of  homicide,  dying  declarations  must  refer  to,  137. 
declarations  forming  part  of  possession  of  stolen  property,  363. 
declarations  a  part  of  the,  admissibility  in  abortion,  411. 
declarations  a  part  of,  in  arson,  429. 
complaint  of  prosecutrix  in  rape  when  a  part  of,  404,  468. 

RESIDENCE, 

inquiries  at,  to  ascertain  existence  of  fictitious  person,  491,  492. 
proof  of,  in  extradition,  558. 

RESISTANCE, 

to  arrest,  showing  consciousness  of  guilt,  151. 

degree  of,  required  in  rape,  471. 

evidence  of  physical  condition  of  parties  to  show,  472. 

RESISTING  OFFICER, 

See  Obstructing  Justice. 

RESOLUTIONS, 

primary  evidence  of,  61. 

RESPONSIVENESS, 

of  answers  on  the  direct  examination,  266. 

RESWEARING  WITNESS, 
when  necessary,  248. 

RETAINER, 

payment  of  not  required  to  render  communication  passing  between 
attorney  and  client  privileged,  216. 

RETURN, 

of  official  may  be  contradicted  by  parol,  461,  524. 
of  fugitive  to  state,  554,  et  seq. 


INDEX.  r"  :  ' 

[Beferences  are  to  Pages.] 
REVENGE, 

us  furnishing  motive  for  homicide,  384. 

REVOLVER, 

condition  and  use  of,  when  relevant,  376. 

RIGHT  AM)  WRONG, 

capacity  to  know,  192. 

ROGUE'S  GALLERY, 

admissibility  of  photographs  taken  from,  62. 

RUMORS, 

derogatory  to  good  character,  101,  102. 

s 

SANITY, 

presumption  of,  195,  196. 

burden  of  proof  to  show,  195,  196. 

SEARCH  WARRANT, 

papers  seized  under,  are  not  competent,  73. 
to  obtain  knowledge  of  letter,  537. 

SECONDARY  EVIDENCE, 

See  Primary  Evidence. 

SECRECYOFTKLKCKAMS. 

dispatches  are  not  privileged,  228. 
subpoena  to  produce,  229. 

SECRET  BALLOT, 

proving  that  it  was  cast,  515. 
SEDUCTION, 

denned,  448. 

circumstantial  evidence  to  prove  sexual  intercourse,  448. 

proving  the  promise  in,  448. 

promise  need  not  be  express,  449. 

evidence  of  prior  attention,  ami  declarations  of  accused.  440,  4-">0. 

reputation  as  engaged,  450. 

credibility  and  corroboration  of  prosecutrix'.  450. 

what  facts  must  be  corroborated,  452. 

corroboration  of  prosecutrix  by  circumstances,  452. 

question  of  consent  for  jury,  4~v2. 

marriage  of  accused  to  prosecutrix  as  defense,  452. 

evidence  to  show  chastity  of  female,  453. 

relevancy  of  prior  conduct  to  show  chastity,  4")4. 

presumption  of  chastity  of  female  in,  455. 

of  female  ward  or  servant,  456. 
43— Ck.  Ev. 


674  INDEX. 

[References  are,  to  Pages.] 


SELF-CONTROL, 


See  Insanity. 


SELF-DEFENSE, 

reputation  of  deceased,  when  relevant  under.  385-388. 
evidence  of  threats  by  deceased,  388. 
proof  of,  in  homicide  and  mayhem,  388. 

SELF-SERVING  DECLARATIONS, 

explanatory  of  possession  of  stolen  goods,  362-364. 

SEPARATION  OF  WITNESSES, 

under  what  circumstances  ordered,  277. 

discretion  of  court  to  exclude  testimony  of  witness  refusing  to  go  out, 

277. 

SEX, 

opinion  of,  based  on  examination  of  skeleton,  373. 

SEXUAL  CRIMES,  443-464. 

SEXUAL  INTERCOURSE, 

evidence  to  prove,  444,  448,  457. 

by  prosecutrix  in  rape  with  men  other  than  accused,  475. 

SEXUAL  RELATIONS, 

evidence  of,  in  rape,  475. 
evidence  of,  in  abduction,  408. 
as  furnishing  motive  for  crime,  384. 
evidence  of  in  bastardy,  594. 

SHOES, 

comparison  of  tracks  with  those  of  accused,  436. 
SIGNATURE, 

when  required  to  written  confession,  168. 

SIGNBOARDS, 

primary  evidence  of  contents,  61. 

SIGNS, 

dying  declarations  by,  142. 

confessions  by,  175. 

testimony  of  deaf  mutes  by,  253. 

SILENCE, 

of  female  raped,  468,  477,  478. 

as  impeachment  of  witness,  298. 

witness  must  be  permitted  to  explain,  298. 


I N  I  >  i :  X  . 

[/,'<•/'  ;•.  no  s  are  to  Pages."} 
SILENCE  UNDEB  CHARGE  OF  CRIME, 
when  indicating  L'uilt,  153. 
accused  must  have  beard  charge,  153. 
when  occurring  in  judicial  proceedings,  L53. 
weight  of,  as  evidence,  15 1. 
circumstances  of,  maj  be  shown,  155. 
at  coroner's  inquest,  etc.,  155. 
motives  of,  may  always  be  explained,  155. 
when  under  arrest,  155,  L56. 
assertion  or  question  may  be  proved,  156. 
mode  of  proving  accused  heard  the  charge,  156. 

SKETCHES, 

See  Paintings. 

SOCIAL  CONNECTIONS, 

of  witness,  when  relevant,  305. 
SODOMY, 

essential  facts  and  accomplice  evidence,  422. 

SPECIAL  VERDICT, 

jury  may  render,  335. 

SPECIES, 

variance  in,  44,  369. 

SPECIFIC  FACTS, 

cross-examination  upon,  of  witness  to  character,  103. 

SPECIFIC  TRAITS, 

of  character,  evidence  to  prove,  96. 

SPELLING, 

effect  of  mistake  in,  43. 

SPONTANEOUS  CHARACTER, 

of  res  gestce,  119-121. 
of  confessions,  174. 

STAINS, 

of  blood,  evidence  to  show,  58. 

STATES, 

extradition  among,  58,  559. 

STANDARDS  OF  COMPARISON, 

See  Handwriting;  Comparison. 

STATE'S  EVIDENCE, 

Accomplices. 


676  INDEX. 

[Beferences  are  to  Pages.] 
STATUTES, 

judicial  notice  of,  568. 

STENOGRAPHER'S  NOTES, 

received  to  prove  testimony  of  deceased  or  absent  witness,  325,  326. 
may  also  be  used  to  refresh  memory,  325,  326. 

STOLEN  PROPERTY, 

may  be  put  in  evidence,  58. 

identification  of,  58. 

carrying  away  of,  353. 

ownership  of,  354. 

non-consent  of  owner  to  carrying  away,  354. 

identification  of,  355. 

production  in  evidence  not  indispensable,  355. 

value  of,  358. 

presumptions  from  possession  of,  359-363,  440,  442. 

finding  of,  through  inadmissible  confession  may  be  proved,  366. 

STREETS  AND  SQUARES, 
judicial  notice  of,  29,  48. 

SUBORNING  WITNESS, 

evidence  to  show  attempt  at,  151,  152. 

SUBPCENA, 

definition  of,  308. 

to  procure  papers  and  documents,  310,  311. 

time  and  mode  of  service,  311. 

right  of  accused  to,  309. 

may  be  granted  accused  in  extradition,  555. 

SUBPCENA  DUCES  TECUM, 

to  produce  telegrams,  229. 

when  granted,  310. 

must  describe  papers  with  certainty,  310. 

production  of  articles  of  personal  property  not  obtained  by  means  of, 

310. 
excuse  for  disobedience  to,  311. 

SUBSCRIBING  WITNESS, 

proof  by,  necessity  for  calling,  50. 

may  be  impeached,  288. 

may  testify  to  forgery  of  his  name,  483. 

SUBSTANCE  OF  CRIME, 

must  be  proved  as  laid  in  indictment,  41. 


INDKX.  677 

[References  are  to  Pdtjes.] 
SUFFERING, 

admissibility  of  declarations  of,  411. 

SUFFICIENCY  OF  EVIDENCE, 
to  sustain  indictment,  39. 

SUICIDE, 

no  presumption  against,  26. 

SUMMARY  CONVICTION, 
of  contempt,  519. 

SUPPLEMENTARY  PROCEEDINGS, 

admissions  made  in,  506. 

SUPPRESSION  OF  EVIDENCE, 

absence  of  witness  procured  by  connivance,  322. 
indicating  guilt,  145. 

SURGEON, 

sending  for,  may  indicate  sense  of  approaching  death,  130. 

SURPLUSAGE, 

in  indictment  defined,  41. 
when  may  be  omitted,  42. 

SURPRISE, 

party  may  show,  caused    by  unexpected    hostility  of    his  own  wit- 
ness, 288. 

SURVEYOR, 

may  testify  orally  as  to  boundaries,  61. 

SUSPECT, 

evidence  of,  before  coroner,  166. 

SUSPICIOUS  CIRCUMSTANCES, 
relevancy  of,  144. 

SYMPTOMS, 

statements  of,  admissible  in  abortion,  411,  412. 


TAKING  CASE  FROM  JURY, 

duty  of  court  to  direct  acquittal,  342. 
court  can  not  direct  conviction,  342. 


678  INDEX. 

\Meferences  arc  to  Pages.'] 
TAKING  THE  VIEW, 

power  to  order  discretionary,  282. 

consent  of  parties  must  be  had,  282. 

when  consent  may  be  dispensed  with,  282. 

knowledge  thus  acquired  by  the  jury  is  net  evidence,  283. 

right  of  the  accused  to  be  present  at,  283. 

after  summing  up,  283. 

oral  evidence  inadmissible  while  taking,  284. 

presence  of  presiding  judge  requisite   at,  284. 

of  premises  broken  into,  435. 

TAMPERING, 

with  witness,  effect  of,  152. 

TANGIBLE  EVIDENCE,  58. 

TEETH, 

identification  of  deceased  by  means  of,  372,  377. 

TELEGRAM, 

primary  evidence  of,  55. 

when  may  be  proved  by  type-written  copy,  56. 

privileged  character  of,  228,  229. 

TERMS  OF  COURT, 

when  judicially  noticed,  28,  29. 

TESTIMONY  ON  PRIOR  OCCASIONS,  319-332. 

THIRD  PERSONS, 

confessions  of,  in  exoneration  of  accused,  178. 
declarations  of,  124. 

THREATS, 

against  accused,  when  producing  flight,  150. 

against  witnesses,  152. 

confessions  made  under  influence  of,  173. 

evidence  to  show  meaning  of,  209. 

evidence  of,  by  the  deceased,  in  homicide,  388. 

if  not  communicated  to  accused,  389. 

evidence  of,  by  the  accused,  to  show  premeditation,  391. 

by  co-defendant  in  presence  of  accused,  391. 

not  inadmissible  though  general  in  character,  392. 

remoteness  of  as  regulating  their  weight,  392. 

language  of,  need  not  be  specific,  392. 

competency  of  witness,  393. 

evidence  of,  made  against  deceased  by  third  persons,  396. 

relevancy  of,  to  prove  intent  to  assault,  419,  420. 

against  owner  of  house  burned,  430. 


1M>I..\  . 
[7i'</<  r>  n<XS  me   tn    /'<';/<  B.  \ 

THREATS—  Continued. 

may  be  proved  to  explain  delay  in  making  complaint,  471. 

employment  of,  in  rape,  478. 

againsl  officer,  evidence  to  show  intent  in  assaulting,  5J.1. 

TIME, 

allegation  ami  proof  of  variance,  42. 
as  element  of  res  gestae,  119,  120. 
evidence  of,  t<>  Bhow  alibi,  185. 

TOOLS, 

possession  of,  used  by  burglars,  438. 
possession  of,  for  counterfeiting,  498. 
for  gambling  as  evidence,  535. 

TRAITS  OF  CHARACTER, 

evidence  to  prove,  95-106. 
TRAMP, 

cross-examining  witness  to  show  he  is  a,  76. 

TRAVELERS, 

may  carry  concealed  weapon,  545,  546. 

TRAVERSE  JURORS, 

when  the  testimony  of  is  admissible,  241,  242. 

TREASON, 

confessions  of,  176. 
TREATIES, 

judicial  notice  of,  567. 

providing  for  extradition,  555. 

TRESPASS, 

by  animals,  evidence  to  show,  369,  370. 
TRICK, 

confession  procured  by,  169,  170. 

sexual  intercourse  obtained  by,  467. 

TRUTH, 

confession  under  an  exhortation  to  tell,  164. 
evidence  of,  as  defense  in  criminal  libel,  426. 

u 

UNCHASTITY, 

evidence  of,  in  adultery,  444. 

See,  also,  Chastity. 
as  impeachment  of  witness,  158. 


080  INDEX. 

[References  are  to  Pages.] 
UNCOMMUNICATED  THREATS, 

their  inadmissibility,  389. 

UNCONTROLLABLE  IMPULSE, 

when  amounting  to  insanity,  194. 

UNTRUTHFULNESS, 

evidence  of  reputation  for,  290. 

UNWILLING  WITNESS, 

may  be  plied  with  leading  questions,  262. 

USAGE, 

to  ask  illegal  fees,  not  relevant,  517. 

UTTERING  FORGED  PAPER, 

sufficiency  of  evidence,  489. 
declarations  accompanying,  489. 
possession  as  evidence  of,  486. 
venue  of  forgery  from,  491. 

V 

VAGRANCY, 

cross-examination  of  witness  to  show,  76. 

VALIDITY, 

of  warrant  presumed,  511. 

of  marriage,  presumption  and  burden  of  proof,  459. 

VALUE, 

of  goods  obtained  by  false  pretenses,  embezzlement  or  extor- 
tion, 368,  517. 
of  stolen  property,  proof  of,  358. 
of  money  stolen,  judicial  notice  of,  358. 
presumptions  as  to,  359. 
of  article  wagered,  532. 

VARIANCE, 

when  material,  41. 

in  matter  of  substantial  description,  42. 

in  proving  identity  of  defense,  42. 

in  larceny  of  animal,  43. 

in  allegation  of  time  and  place,  43. 

in  allegation  of  person,  43,  44. 

in  spelling,  idem  sonans,  44. 

in  species  or  genus  of  animal  stolen,  44. 

in  proving  the  venue,  45. 


INDEX.  681 

[References  are  to  Pages.] 
V.\K1.\.\>  i.     L'untinut 

in  proving  ownership  of  stolen  goods,  •■;">:',,  868,  435,  436. 

in  mode  of  killing,  375. 

in  proving  name  in  homicide,  377. 

in  proving  building  burned,  420. 

in  proving  forged  writing,  484. 

in  proving  official  character,  514. 

in  proof  of  adulteration,  537. 

VENEREAL  DISEASE, 

relevance  of,  in  rape,  473. 

VENUE, 

may  be  proved  by  circumstantial  evidence,  45,  358. 

need  not  be  proved  beyond  reasonable  doubt,  40. 

may  be  inferred  from  evidence  of  accused,  46. 

burden  to  prove  on  state,  46,  358. 

must  be  proved  precisely  as  laid,  46,  358. 

proof  of  county  sufficient,  46. 

change  of,  for  convenience  of  witnesses,  314. 

in  bigamy,  463. 

proof  of  in  forgery,  47,  491. 

of  false  pretenses,  507,  508. 

court  will  notice  judicially  its  limits,  29. 

evidence  of  on  part  of  defense  supplies  omission  by  prosecution,  45. 

VERACITY, 

bad  character  of  accused  for  may  be  shown,  80,  97. 
evidence  of  bad  reputation  for,  to  impeach  witness,  290-292. 

VERDICT, 

essentials  of,  on  plea  of  former  jeopardy,  244. 

VERDICT  OF  GUILTY, 

when  may  be  rendered  on  circumstantial  evidence,  8. 

VERTEBRA, 

exhibition  of,  to  jury  to  explain  evidence,  60. 

VICTIM'S  COMPLAINT, 

See  Complaint  op  Victim  in  Rape. 

VIEW, 

See  Taking  the  View. 


VOICE, 


identification  by,  70. 

accused  can  not  put  his  own  in  evidence,  71. 


682  INDEX. 

[References  are  to  Pages.] 
VOLUNTARINESS, 

must  be  shown  before  admitting  confession,  160. 

preliminary  question  of,  to  be  tried  by  court,  160-166. 

presence  of  jury  during  argument  on,  161. 

cross-examination  as  to,  162. 

right  of  jury  to  determine,  162. 

not  necessary  in  case  of  admissions,  171. 

w 

WAGER, 

making  of,  must  be  proved,  531. 
circumstantial  evidence  of,  532. 
value  of  thing  involved,  532. 

WAGES, 

of  accused,  relevant  in  larceny,  364. 

WAGON  TRACKS, 

evidence  to  show,  in  larceny,  364. 

WAIVER, 

of  right  to  cross-examine,  271. 

as  to  privileged  communications,  79,  200,  223. 

must  be  express,  79. 

WANTONNESS, 

when  malicious  intent  may  be  inferred  from,  368. 

WARNING  ACCUSED, 

confession  made  without,  162-165. 

WARRANT, 

when  contents  of  may  be  shown  by  parol,  51. 
validity  of,  may  be  inquired  into,  510,  524. 
as  proof  in  extradition,  560. 

WEAPON, 

variance  in  proof  of,  in  homicide,  375. 
purchase,  use  and  possession  of,  by  accused,  375. 
admissibility  of  and  experiments  with  in  evidence,  59,  60,  375. 
inference  of  intent  to  do  bodily  harm  from  use  and  character  of,  417. 
what  is  deadly,  418. 

WEIGHT  OF  EVIDENCE, 

before  grand  jury,  35-38. 

rules  in  civil  and  criminal  cases  distinguished,  10-14. 

to  be  determined  exclusively  by  jury,  265. 

judge  may  not  comment  upon,  265. 

in  extradition,  559. 


[ND1 

[A1.-.  , „,-, g  ow  to  Paget.] 


683 


WHISKY, 

judicial  notice  of  its  nature,  28. 

WIFE, 

evidence  of  quarrels  with,  396,  397. 

WITHDRAWAL  OF  WITNESSES, 

See  Separation  of  Witnesses. 

WITNESS, 

character  and  mental  capacity  of,  4. 

before  the  grand  jury,  35-40. 

primariness  of,  50. 

credibility  of,  in  perjury,  526. 

attendance  in  extradition  procurable  by  subpuna,  66J 

WOUNDS, 

sense  of  approaching  death  may  be  inferred  from  nature  of,  131. 
witness  may  testify  as  to  time  and  manner,  58. 

relevancy  of  evidence  of ,  to  show  locality  and  description,  '.'>' '■>,  374. 
photographs  received  to  show,  373,  374. 

WRITING, 

invalidity  of,  when  forged  may  be  shown,  494,  495. 
variance  in  proof  of,  484,  485. 
must  be  produced  in  forgery,  490. 
secondary  evidence  to  prove,  if  lost,  490. 
photograph  to  prove,  490. 

WRITTEN  INSTRUMENTS, 

See  Best  Evidence  ;  Primary  Evidence. 


Whole  Number  of  Pages  791. 


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